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.