By Brian A. Facey and Joshua Krane

The outcome of the Competition Bureau’s case against the Toronto Real Estate Board has attracted significant media attention.  The case, given its complexity, has been largely misunderstood. It’s important to note that TREB, though criticized for doing so, was justified in defending itself and seeking to clarify the law.

At the outset of this case, the law was understood to apply only to dominant companies if they tried to exclude their competitors and raise prices. But TREB has no competitors and the courts found its conduct had no effect on prices or commissions. This caused the courts to note that the decision to rule against TREB was a “close call”.



Following the Supreme Court of Canada’s (SCC) refusal to hear TREB’s leave to appeal, members can now display sold data online through a TREB member password-protected Virtual Office Website (VOW). Some consumers will likely benefit from online access to sold listings on VOWs, but this comes at a price: namely, privacy.

The Competition Bureau, and other similar government agencies around the world, are grappling with big data, innovation and privacy. Striking the right balance between these factors will not be easy. The bureau recently noted that data must be collected subject to privacy laws. It also noted that the law does not usually impose on firms an obligation to share data that they have collected and developed. Yet that’s exactly what the courts say TREB must do.

The SCC’s refusal to weigh in on TREB’s appeal leaves open many legal questions about how our laws will balance the growth of big data, innovation and privacy in an increasingly digital world.

Brian Facey and Joshua Krane are partners in the law firm of Blakes LLP. Blakes was legal counsel to the Toronto Real Estate Board in its application for leave to the Supreme Court.

16 COMMENTS

  1. True, the Supreme Court of Canada (SCC) permitted a flawed judgement in an Appeal Court to be upheld, by refusing to hear the subsequent Appeal to the SCC. In my brief experience reading SCC procedures and judgements, the refusal of the SCC in this case may have hinged on the facts mentioned in the above article and comments. Knowing that the SCC has to primarily rule on what was before it from the lower court findings, the SCC may have felt that the arguments there gave them insufficient background to make an effective finding of facts.
    The next legal challenge, that has a strong likelihood of actually reaching the SCC, is a PUBLIC complaint (possibly a class action from public interest groups) specifically on privacy of personal data, and the thresholds of general access to that data.
    We are REALTORS, and our Associations collect our data, and our client’s data, in the course of running our businesses. If the privacy issue that TREB was arguing actually has legal viability, the people affected will have to say so. If not, REALTORS have just one more explanation to give to our clients during the first client interview.

    • I like your thinking but will be a difficult for one person to pay all the bills for this kind of challenge so financial support from a group or organization would probably be needed, especially if it goes as far as SCC again. Someone needs to take the first step.

  2. I would like to know how one would go about protecting the sale price (if that was the sellers wishes) and if there would be a cost involved? I have been told this is possible ..via a lawyer..yet If someone has this info would appreciate them sharing it.

    • I inquired of a local real estate lawyer who has served my clients for more than 35 years, and posted about it in REM comments more than once.

      His response was that since computerized land registry came into being, in the program used only permitting lawyers to register on title, there is no field to address this issue, thus avoiding any work-around as was previously doable within manual registrations.

      The transference of title from one person to another, regardless of how or why the title is being changed insists that the closing registered purchase price must be disclosed on all transactions.

      Any changes or amendments after the fact requires further registration apparently. Family to family sales often wanted to be kept quiet, and sometimes to avoid land transfer tax which it seems are avoided in certain circumstances. I don’t know what such circumstances would be. Perhaps someone on REM can speak to that topic,

      Carolyne L 🍁

      • Carolyne, I learned years ago from the esteemed Mark Weisleder that apparently on a purchase and sale it’s done by paying the land transfer tax before transferring title. I don’t know if that still works or not. The other is when a transfer is made between related parties it’s recorded at $2.

        • Hi “PED”

          I actually reviewed that answer, too, as it was my belief, having been confirmed previously, as well. But apparently no longer applies.

          Allegedly with the advent of the now used registration program only used by lawyers (in Ontario) does not have or present such opportunity. No computer fields addressing or allowing for such; thus the registering law office has no choice but to disclose.

          I’m thinking of all the divorcing clients I served over the years, who in a similar situation today, now have no divorce privacy rights? Or, also any transference of title among family members for the 2$ fee. We saw plenty of that, for example if one spouse or the other decided to open a business, or become partners in one, wanting to protect the matrimonial home as a private asset.

          And the opportunity for family asset division feuds making executor additional research no longer necessary, seemingly with the required sold (and or purchase price) being currently required to be disclosed. Everything needed can be had directly on the MLS, or by connecting with a licenced/registered rep.?

          Likewise can anyone address a purchase or sale currently made “in trust;” as in: must in be stated that the purchase or sale is being consummated: in trust – “for whom?” Or can the documents just be stated as “in trust?” so long as the land transfer tax is paid. Wouldn’t be difficult to cross-calculate using reverse math. Basic arithmetic.

          Side agreements must be dealt with cautiously, because we had always been taught that side agreements of any kind were not permitted: as in illegal.

          But I recently learned that a purchase agreement can in fact have an undisclosed side (trust) agreement as in a prenup arrangement wherein an individual can purchase a property, named as the purchaser, and registered as such, that said property can never be disposed of (by sale or other transfer of title) without the agreement as stated in the side (trust) agreement; such that the proceeds would honour such subsequent division of equity in the asset.

          Sounds very complicated and different than a life-estate purchase. But apparently legal.

          Anyone out there who can speak to this topic? or do you know, PED?

          Cordially
          Carolyne L 🍁

  3. One of the major disappointments for me was the fact that the Supreme Court decided not to hear the appeal……..which is not the first time that this has happened in a major precedent setting case involving a Real Estate related matter . Personally I don’t believe that the Supreme Court should have the right to decide what cases it will or will not hear . How can we have true Justice in this country when the Supreme Court can deny justice by not hearing a case . If they don’t have enough Judges then they should appoint more , if they don’t have enough Court Rooms then build more but to me , not to hear a case of this magnitude is “Justice Denied “.

  4. Sales data is available from land titles but for a price for each individual property request so the availability is what is changing. If sales data are now going to be offered by real estate companies for free with a fake name/email and password I think it is naive to think there will not be any negative privacy repercussions from this.

  5. The MLS systems were built and have evolved for Co-Operative uses, they WERE NOT designed for Competitive use. Its this simple fact that has allowed the brokerage industry to be attacked without the type of defenses available to businesses in other industries.

    Failure and Incompetence have been hidden from the public prior to Solds being released. That 70 year tradition ended a couple weeks ago.

    BTW you have to laugh at how TREB lawyers have defined a VOW in this response. It is 100% clear they were never educated in how the VOW concept was created or what it actually represents. Pretty clear they didn’t read REM the last 15 years where the industry standard definition of what a VOW actually is was shown year after year after year.

  6. The issue of privacy was a side-show from the very beginning. Land ownership and sales data is already public domain via the land registry. Anyone interested may know the details of a transaction. The difference here is who is providing the information, when it is provided, the quality of the data and how readily available it is online.

    Unfortunately TREB did the profession a disservice in public perception by reinforcing the notion that we are gatekeepers intent on data-hoarding versus consultants adding value in people’s lives during acquisition, conveyance and transitions between homes.

    It’s encouraging to see the new regime at TREB already leaning toward a culture of open-mindedness. The time is long overdue that we drop the “gatekeeper” role and focus on delivering tremendous value in peoples lives.

    • Yes Ryan you are correct that the information was always available but most people were to cheap or lazy to access it. We live in a world where everyone wants everything for free and easy.

  7. I believe the issue has nothing to do with privacy and the whole privacy issue will soon become irrelevant. New technologies are empowering worldwide consumer-to-consumer listing services like Zillow and others although Amazon, Microsoft and Google have all said they want a piece of this business. Do you think for a moment that they’ll let a $40 million organization like CREA or TREB get in their way? They’ve all destroyed entities hundreds of times bigger. None of them need the MLS or realtors to assemble the information they need to build their own listing service. They’ll go direct to the consumer and convince them through lower cost, wider market reach and an infinitely better online experience that they don’t need the realtor of today to complete a property ownership transfer. In fact they won’t even need lenders, mortgage brokers or lawyers either. Consumers provide substantially more data about their homes and themselves when selling a home directly than anything TREB is trying to protect. Realtors and Canadian Organized Real Estate are so caught up in their protectionist agenda to prevent outside incursion of the MLS that they don’t see the tsunami of technological change that bearing down on them. Realtors should instead be questioning what their role will be in five (but no more than ten) years. Do an Internet search on ‘proptech’ and find out about the hundreds of companies that are looking to make realtors irrelevant and racing to win this multi-trillion dollar business. None are talking about the realtor’s future role and some are implying realtors won’t be needed. Zillow’s CEO, Spencer Rascoff announced last month that Zillow will aggressively embrace blockchain technology. Blockchain means directly connecting buyers to sellers so what’s the realtor’s role within Zillow five years from now? Combined with artificial intelligence, cryptocurrency, smart contracts and the Internet, blockchain technology is already seeding a worldwide decentralized ecosystem for value (eg. property) exchange without need for traditional trusted entities and facilitating such value exchanges at a fraction of today’s costs. Soon, real estate lawyers’ fees, mortgage agents’ and realtors’ commissions, banking fees, possibly land transfer taxes, and even the traditional the land registry will soon diminish significantly or disappear. CREA, TREB and all the others can’t hold a candle to the billions of dollars being poured in research and development to facilitate the direct home (and commercial) buyer-to-seller process. Before you start flaming me for being … whatever … do some serious research and then I’d be happy to have conversation with anyone who’s truly concerned about whether they’ll have a real estate career as we know it today within five to ten years.

    • You can “believe” it’s not about privacy but one of the very first reactions from a CONSUMER (not a Realtor) was to ask their Realtor to disguise the selling price, for what reason? Yup, for PRIVACY. Therefore, it does indeed seem to be about privacy to at least some consumers.

      If you are raising your hand and volunteering to be first in line to give up your job for something that’s “inevitable” please clarify. Otherwise get out of the way for anyone trying to make a difference and saving a job that you actually want to keep. You can’t both want to keep your job and then argue that people should stop trying to do so, at least not in any sane and rational manner of speaking.

  8. The TREB’s ORIGINAL lawyers should have defended on lack of “implicit or explicit permissions” to release data of which they(TREB) were merely ‘Stewards’ – ie NOT owners (nd nor were their members Owners of the data). The decision to respond to the attacks and battlegrounds of “bricks/mortar vs innovation” were doomed from the start. They should have focused on definition of “not-public” information since all TREB’s data is not-public until a transaction’s closing & registration made the info Public. Oh well …. spilt milk etc But you might want to see my Sept 28,2011 Blackberried email to Michael Polzler & TREB on Permission, Supervision and Recourse

  9. I think what you’re missing is that a primary function of all Boards is to collect real estate data and share it with its members so they can conduct business efficiently.

    This decision does NOT require the Board to share data with anyone other than members.

    Each member pays dues to help pay for the collection and presentation of this data, so they have a right to obtain the data.

    This decision clarifies that it is illegal for the Board to set arbitrary and anti-competitive restrictions on how its members may use the data, including restrictions that effectively dictate the business model a brokerage must use.

  10. The ruling is a slap in the face to individual privacy, at the very least individuals should have the option to opt-out of sharing this data publicly through VOW’s. Removing the right to privacy entirely and completely away from a consumer’s choice has massive repercussion about how privacy is regarded and prioritized in decision making. It also says a lot about how much the competition bureau cares about the rights of people in its own country.

    Given the extent of provincial and national privacy legislation, I can only assume those were written without ever contemplating a situation like this and that’s why they don’t address it by stating people must be given a choice.

    It’s sad that any burden including the huge potential costs to change this now falls on an individual. Or does it?

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