By Heino Molls

Here are the three most important aspects about the recent Competition Tribunal hearing, in my sole and humble opinion.

The first is that the outcome of these hearings will have the most profound impact on the industry since the advent of what people in the real estate community refer to as “desk fees” at real estate brokerage offices back in the 1970s.



The second is that the real meaning of the whole thing is evasive and hard even for the most seasoned real estate professional to truly understand, let alone the general public, to whom brokers and sales reps will be stuck with explaining everything. The people who are making this ruling do not seem to get the importance of the issues to the common real estate salesperson or broker. The people who are going to make the rules for real estate sales are not even close to understanding the real estate business.

The third item and most dear to my heart is the fact that the only media, newsletter, magazine or website that is covering this issue at every hearing is REM. No other blog, information wannabe or mainstream media outlet has consistently sent a reporter to these hearings as REM has.

This case is a mess. It comes down to government intervention in a business that for all intents and purposes was running as well as any other industry before somehow, somebody talked some government representatives into getting involved in a business they knew nothing about and still know nothing about. I am reminded that the last time there was a significant change in the practice of selling real estate it was the aforementioned “desk fees” but that sea change was handled and embraced internally by the real estate community. There was no government intervention like this mess.

One thing that stands out to me here in the fall of 2015 is how the various government outfits have odd and opposite positions these days. I just finished reading that the Ontario privacy commissioner has ruled that the Liquor Control Board of Ontario must stop collecting and using private information about its store broker clients and stop making that information available to whoever wants it. And here we have the Competition Bureau demanding that TREB and CREA collect and give out private information about the clients of its real estate broker offices to whoever wants it. Come on, which is it?

Make no mistake about this whole mess, the issue is about privacy. The private information of homeowners related to the most important thing that is in their possession, their home.

Even if a homeowner wants to sell their property, some information is private and should be treated with the dignity of privacy it deserves, the way TREB and CREA treat it now. That dignity should be upheld by our government more than anyone. How could they possibly think it is their job to ride roughshod over the dignity of its citizens’ privacy?

As reported in REM, lawyers representing TREB used the following quote from President Barack Obama from 2012:

“One thing should be clear, even though we live in a world in which we share personal information more freely than in the past, we must reject the conclusion, that privacy is an outmoded value. It has been at the heart of our democracy from its inception and we need it now more than ever.” How appropriate.

In the words used commonly by a Canadian celebrity: Make it right!

3 COMMENTS

  1. Mike Holmes was on CBC the last 3 nights warning of unethical practices by real estate professionals ( both registrant to trade and home inspectors). So the conclusion of this article is timely.

    Privacy is a very very very serious issue when it comes to selling a home on many many many counts but TREB failed miserably to present evidence explaining why, irrelevant to the CBs case ever winning, consumers need to be better educated when selling their homes and opening their front door to the world.

    I have debated the privacy issue now for over a decade and ORE still does not get it or if they do the greed for commission dollars remains too strong. Here is my most recent example.

    I volunteer coach a 12 year old boy on one of the youth sports teams I coach. The home he lives in is listed for sale. At practice last week I asked him why Kobe Byrant was his favourite player, why his favourite colour was yellow and how he did on his soccer team this summer as I thought his team had won. What I didn’t say was that his folks clearly hiked for fun, they prefer single serve coffee from Tim’s, his Dad uses Apple computers or that his dad was a graduate from Queens. I didn’t ask why they still had a high ratio mortgage or why they were looking to move so quick.

    Complicated this issue is because of the ignorance ORE has blanketed its membership with. TREB does not now nor will ever be allowed to give unhindered access to listings or their data from sold properties. TREB’s copyright license agreed to with its members was issued under a strict, universally accepted and clearly defined set of conditions on it’s use. There was at no time any consideration or intent for TREB to use those copyright protected works in the manner the CB has requested.

    Irregardless of any legitimate CB issues, Copyright laws dictate what TREB can do with that creative content. This is not a complicated issue call up any copyright lawyer in Canada today and ask.

    Now if TREB wants to fight its members rights to their copyrights in order to empower TREB to do what it wants that is simply another court case and one TREB will lose.

  2. Heino, thank you for writing your letter.

    When any reasonable minded person takes the time to read the Commissioner for the Competition Bureau’s Pleadings, in their current Application to the Tribunal, I feel that there is only one reasonable conclusion that can be drawn, and that is: that said writings (Pleadings) are the aggressive work product of an ambitious individual.

    I share your astonishment that REM is the only media representative that is taking an interest in what is a matter involving a huge Canadian Industry, that continues to be under what amounts to an assault by one of Canada’s most powerful and influential Federal Government Agencies. However, I don’t feel that this is just a story, I feel that this is an outright scandal — worthy, of a public inquiry!

    The advent of the internet meant that consumers would also have incredible new access to the Buyer’s and Seller’s of real estate, regardless of whether said Buyer’s and Seller’s chose to list their homes with Organized Real Estate or not. As a matter of fact, because of the way IDX and the DDF clutter up Google a FSBO (private seller) should have a cleaner and better exposure on Google when they are not listed with organized real estate and tied to either the IDX or DDF exchange programs — as said programs bleed multiple versions of the same listings over the Internet.

    Not only was the promotion of “mere postings” an attack on Full-Agency Representation, we (our Board) were given instructions following the signing of the “Consent Agreement” in 2010, that CREA’s competition lawyer’s were strongly recommending that we delete any rules we had, that required a, Real Estate Practitioner, REALTOR to visit any property that they might list or sell and we did exactly that! There can be little doubt that some listing Registrant, REALTOR’s of “mere postings” are not stepping inside the front door of these homes, and I have written confirmation of that from one such Seller — who was also working at the time with a large FSBO Marketing Company. When a, Registrant, REALTOR who lists a “mere posting” never steps inside the front door, the Seller is strictly paying for the scandalous use of all of CREA’s Trademark entities — it has nothing to do with general exposure and competition, it’s a question of ethics!

    The advent of the internet, along with cell-phone technology, also meant a new dawn for Real Estate Registrants and Practitioner’s, in the sense of an increased freedom to leave an existing Brokerage – if they felt a better “commission split” and other advantages existed elsewhere. When you have your own phone number and marketing website, you can move to another Real Estate Brokerage or start your own, without losing a beat. A more typical real estate, personalized, marketing website should be affordable to most Registrant’s/ Practitioner’s, who are doing any amount of business. When we were more shackled to the Brand Brokerage, and when I started, the common split was: 50/50 — half for the Brokerage and half for me, the REALTOR. The subject of “commission splits” is inherent to the subject of competition, but hasn’t been inherent to the Competition Bureau’s arguments!

    As confusing as this matter may be for some, the one part that should be crystal clear is: that the financial costs associated with building and operating a full-blown VOW (Virtual Organization Website) requires pockets the size and depth of an organization — this is a Big-guy, elitist, concept! Were VOW’s to become a fact of life, in my opinion, we would lose the individual freedom of movement that we gained with the advent of the Internet and would become, once again, more dependent on the Big Brands — who could afford to operate these large VOW platforms. As part of their Economic Theory (contained in their Application) the Competition Bureau of Canada didn’t contemplate the potential eventuality that individual Registrant’s or Practitioner’s would have a weaker negotiating position regarding the subject of “commission splits”, and that the net effect of VOW’s could be a fundamental and serious lessening of competition!

    Getting back to the subject of media interest, or a lack thereof. Let’s not forget that regarding the Competition Bureau’s current Application, there isn’t any reference whatsoever to Agency Law or Client status verses Customer status, and certainly not any reference regarding the benefits associated with being a Client. Of course, the omission of any discussion of the relevance of Agency Law and Client status obviously simplified things for the Competition Commissioner, but was there an even greater reason for the Commissioner avoiding the topic of: Agency? Had the Commissioner for the Competition Bureau of Canada included the topic of Agency Law, would the Provinces have felt obliged to consider requesting “Intervenor Status” — since the fundamental Governance of Real Estate Law falls under Provincial jurisdiction?

  3. Heino:
    The “Make it right!” celebrity of whom you speak, Mike Holmes, can now, thanks to the Competition Bureau, become a UBER taxi service provider without having a taxi license and without having liability insurance to cover off paying passengers’ claims for personal injury damages etc. This morning on the CP24 CTV news channel it was revealed that the Competition Bureau wants current Toronto taxi rules and regulations “relaxed” to allow for further competition within the industry. Sound familiar?
    I guess they have to do something that makes a big public splash to justify their existence. Ahhh…bureaucrats without a cause.

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