By Neil Sharma
The Competition Tribunal appeal hearing between The Commissioner of Competition and The Toronto Real Estate Board (TREB) began Monday in the Federal Court of Appeal with TREB once again arguing that clients’ privacy rights will be breached if certain data is exposed on the Internet on virtual office websites (VOWs).
In particular, sold information – a home’s previous sale prices – was at the centre of the day’s litigation, with lead defence council William Sasso arguing that privacy isn’t a business consideration but a legal one.
“One doesn’t balance privacy rights, one recognizes privacy rights,” he told the three-justice panel led by Justice Marc Nadon.
He said that it is a long-standing TREB policy that sold data is only to be shared member-to-member and with clients in person, by fax or email.
The Competition Tribunal ruling determined VOWs could conceivably save buyers and sellers money, but Sasso argued the Competition Bureau argued no such thing, rendering the point moot.
“TREB has been consistent with what it has historically done with the information it has,” he said. “TREB members understand what they can and cannot do with the information they have at their disposal.”
He also distinguished consumers, whom he says is anyone with a passing interest in the real estate market, from clients, adding the latter must consent to sharing sold data.
With intervener status, CREA’s lead council Sandra Forbes said sharing sold data indiscriminately could inflict damage upon the organization’s reputation and that the tribunal failed to provide “quantitative evidence” in lieu of qualitative evidence, which she called unreliable and speculative, in its rendering.
Forbes said the association’s concern “is (that) displaying private information that wasn’t agreed to could hurt its trademark.”
“Implying consent is not enough,” she said. “Of the millions of hits these websites get, very few register, and an even smaller subset actually become clients.”
Forbes argued that brokers emailing clients sold data is a controlled practice and that they’re subject to rules and regulations, whereas VOWs have wider audiences.
“There’s no such thing as a bright line between traditional brokers and a broker who uses the Internet to compete, because all TREB brokers use the Internet in some way,” she said. She added that a VOW is not a new product of service because it is one way to display the disputed information. The issue before the tribunal was narrow; it was not if the Internet provides a competitive advantage, Forbes said.
“TREB’s restriction does not interfere with VOWs’ ability to attract clients.”
Forbes also said looking at VOWs south of the border – as well as in Nova Scotia where one of the prosecution’s key witnesses, Viewpoint Realty, operates – was irrelevant and should not have had bearing on the tribunal’s decision.
The Competition Bureau’s lead prosecutor, John Rook, argued the court should uphold the tribunal’s rendering, stating it “already determined there were anti-competitive practices in the past, present and inference of future.”
He argued that sold data is critical to helping VOWs distinguish themselves from traditional brokerages, and that buyers and sellers see value in obtaining the disputed information.
“Home purchasers and sellers find this useful information prior to meeting their real estate agent,” he said.
He said without this information, “Viewpoint cannot enter the relevant market and TheRedPin (another brokerage that gave testimony) has not grown as much as it likely wants to grow.”
Rook stated that the brokerage where TREB past-president Mark McLean is a broker, Bosley Real Estate, had operated an app that breached the board’s sold data prohibition. Bosley was not the only brokerage that reportedly violated the banned practice, and Rook said TREB members made their displeasure known and threatened to follow the brokerages’ lead if the matter wasn’t swiftly rectified by the board.
“TREB did not take action against Bosley and Re/Max for displaying sold data on their websites for 10 months,” he said. “TREB president McLean had an existing relationship with Bosley.”
Rook said that “TREB’s real concern was with losing control over the data…There isn’t a scintilla of evidence to substantiate their (privacy) concern.”
He added, “The tribunal in its order instructed TREB to include all data in the data feed, but under a condition: VOWs using sold data can only be for residential real estate. That restriction makes it complete.”
The appeal hearing resumes Tuesday morning.