By Tony Palermo

Lawyers for the Commissioner of Competition and the Toronto Real Estate Board (TREB) presented an overview of their final submissions to the Competition Tribunal in Ottawa Monday.

Both sides had handed in their complete written final submission package to the three-member panel days earlier.

Counsel John Rook reinforced the Competition Bureau’s position, stating it believes TREB has substantial or complete control of real estate brokerage services in the GTA; that TREB has exercised that control in a manner that has had the effect of creating or maintaining its market power to the benefit of its members; and that this has substantially lessened competition in the real estate marketplace.



He spent the morning challenging TREB’s assertion that it does not have market power and cannot influence competition in the market.

“In my submission, there is no force to (TREB’s) arguments,” said Rook, adding later that “TREB has the power to dictate the manner in which Realtors carry on business in the market and it’s beyond the balance of probability. I see no issue whether the board has market power and is exercising that market power.”

Rook also argued that TREB’s actions could be considered overwhelmingly disciplinary, predatory or exclusionary, in part, because TREB is protecting its members from allowing full information virtual office websites (VOWs).

He also dismissed TREB’s privacy concerns, citing that the information under dispute is publically available through Ontario’s land registry system; that the information is available from real estate brokers; and that there are robust consents in place from both property buyers and sellers.

TREB fell upon the privacy argument, suggested Rook, “to provide a smoke screen to avoid dealing with issues” like the disputed data and full information VOWs, even though it’s information consumers want to have and some Realtors want to make available. He pointed to Viewpoint Realty in Nova Scotia, which over the last five years has grown to become Nova Scotia’s largest real estate database. Viewpoint CEO and founder Bill McMullin attributes his success, in part, to making all information available to the public.

Viewpoint Realty’s website reinforces this position, stating to consumers, “We’re actually licensed as a brokerage in a number of other provinces but unfortunately we’re yet not able to offer Viewpoint in these provinces because real estate boards and other data suppliers want to restrict you from having convenient access to property and listing data. It seems they want to force you to call a real estate agent.”

TREB counsel Don Affleck countered by saying that private life as previous generations knew it is now just a matter of “private for how long?” He said the Canadian Charter of Rights and Freedom’s grants reasonable expectation of privacy and that western legal systems recognize this expectation.

“Do we control technology or does it control us?” asked Affleck.

Affleck challenged the Competition Bureau’s position that TREB’s VOW policy was anti-competitive, suggesting that the evidence is “clear and abundant” that the policy is neither exclusionary nor disciplinary to members or entrants who want to offer a VOW. He said there was no evidence presented to the panel that presented the competitive impact of full informational VOWs, either in Canada or the U.S.

“If (full informational VOWs) were considered a disruptive technology that would have a competitive impact on the market, surely there would be data from either the U.S. or Halifax, but no empirical data was presented at this tribunal,” Affleck said.

Affleck also spent time tackling the privacy concern by presenting a historical chronology of privacy policy development and relevant case precedent, ending with a 2012 quote from U.S. President Barack Obama: “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.”

TREB counsel David Vaillancourt spent some time addressing the economics of market power and the lessening of competition, repeating to the tribunal that the evidence shows TREB does not have any market power, nor does TREB exercise influence against its members or prevent any barriers to entry in the real estate market.

“Any barriers are set by the regulators, not TREB, and a governance structure is in place,” said Vaillancourt.

He also noted that the term “market power” has a specific technical meaning, explaining that the “guidelines say you cannot have market power where firms are competing vigorously with each other, and that is what the evidence has shown.”

Addressing copyright, Vaillancourt stated it was TREB’s position that it owns the copyright to the MLS database, adding that “it is worth stressing it is an incredibly low bar to get copyright protection.”

CREA counsel Sandra Forbes also challenged the Competition Bureau’s position that North American brokerages always provide historical MLS data whenever they are permitted to do so, as well the belief that when the data is offered by a full information VOW, it is the most accessed information. She stated that there was no evidence presented to the tribunal to show how valuable sold information was to a consumer in relation to other listing information.

She also challenged the significance of Viewpoint offering sold data on its VOW to explain the company’s success. She said not only was no evidence presented to the tribunal to suggest it played a part, but that Viewpoint’s growth and success might instead be because of the quality of its agents, effective management or its website’s innovative features.

“It’s a big leap to say that (Viewpoint) has five per cent of all current listings throughout Nova Scotia because of (sold data) on their website,” said Forbes. “There isn’t any evidence to support that.”

In addressing the popularity of Viewpoint Realty’s website in comparison to realtor.ca, Forbes repeated that there was no evidence presented to suggest it was because Viewpoint offered sold data, saying “it could be because Viewpoint is viewed as an expert in Nova Scotia.”

Addressing privacy issues, Forbes said the panel had evidence that many consumers don’t want their transactions advertised on the web or otherwise, and that, at the very least, it was debatable whether the current consent clauses were adequate enough to display the disputed information on the Internet in accordance with privacy legislation.

“CREA has a valid interest in making sure it is not associated with a violation of privacy laws and regulations,” said Forbes. “There is a difference between disputed fields being available for everyone, who may have no interest in buying or selling (real estate), or for brokers who can use the information and disseminate it their own discretion.”

At the end of the hearing, Chief Justice Paul Crampton gave TREB and the Competition Bureau until Dec. 2 to come to an agreement on costs before the tribunal renders its decision.

 

  • Note: This story has been changed from the original version, to reflect that the Dec. 2 deadline in the last line refers to legal costs only.

33 COMMENTS

  1. I can remember thinking a very long time ago that the political systems that we have in place today simply couldn’t have been conceived of, in more recent times, because these systems were so fundamentally designed that they could be largely controlled to the benefit of those at the highest levels of society. A famous American intellectual refers to these systems as systems that were designed to protect the interests of the opulent!

    Some high level positions in our society can tend to have a very common thread and there is no better example of this than at our Federal level of Government. As it relates to this subject matter, it is our Canadian Industry Minister who is responsible for appointing the Commissioner for the Competition Bureau of Canada and Federal Court Judges are appointed by our Canadian Justice Minister with the expected influence of our Prime Minister. Both of the Ministers mentioned sit as part of our ruling Federal Government (partisan) Cabinet.

    A fairly recent article in the Huffington Post spoke at length regarding how the Canadian judicial system is viewed by one organization, in terms of the integrity of our process pertaining to the appointment of our Judges. Canada apparently has one of the lowest rankings in the world as it relates to the organization that is cited in the article. You can read the complete story here: http://www.huffingtonpost.ca/jj-mccullough/canada-judicial-appointments_b_5264567.html Stories like the aforesaid serve to reinforce how crucial it is for a democratic country like Canada to have a vibrant and free media that pays close attention to our political goings on and strives to bring important stories forward — in a way that Canadians can understand the significance of key events.

    I, for one, except the initial findings of the Competition Tribunal, wherein that they dismissed the Competition Bureau’s pleadings against TREB — on the grounds that were stated as part of that ruling. However, in addition, it is what was also commented on as part of said ruling that hasn’t received much press, but that has been commented on by at least one esteemed Law Firm that I’ve found to be of equal or greater interest. Said entire publication can be found here: https://www.mccarthy.ca/article_detail.aspx?id=6244
    What I found to be particularly interesting in the aforesaid publication was contained in their following paragraph:

    “It remains to be seen whether the Tribunal would consider that an application by the Commissioner under section 90.1 of the Act would be contrary to subsection 90.1(10) of the
    Act, which provides that the Commissioner cannot commence proceedings under
    section 90.1 on the basis of the same facts on which an order is sought by
    the Commissioner under section 79 of the Act.”

    In Layperson’s terms, what is being described in the above paragraph, is the potential for a “double jeopardy” situation — meaning that the then Commissioner of the Competition Bureau of Canada might not be able to remake her case (pleadings) to the Competition Tribunal, as a result of initially having filed under an incorrect section of the Competition Act! Were the initial decision of the Competition Tribunal to be upheld, it would have opened the door and provided the opportunity to confirm whether the (since and prematurely departed) Competition Commissioner had in fact committed a fundamental error in interpreting the Competition Act! Were it to be confirmed in fact and Law that the Competition Commissioner had made such a mistake this would have been extremely embarrassing for the ruling Conservative Party — particularly with an election looming!

    There has also been some concern expressed in the legal community as to the nature of the ruling of our Federal Court of Appeal in dismissing the initial findings of the Competition Tribunal, see the attached link:http://www.mccarthy.ca/article_detail.aspx?id=6641

    The following paragraph is taken from said esteemed, linked, material:

    “Conclusion

    The FCA decision in TREB casts uncertainty over who can be the subject of an abuse of dominance application by the Commissioner. It suggests, at a minimum, that trade associations can be targets of abuse of dominance cases. The uncertainty created by this decision is troublesome, particularly in view of the fact that administrative monetary penalties (AMP) of up to $10 million are now available in abuse of dominance cases. On its reconsideration of the case, it would be beneficial for the Tribunal to provide guidance on this issue.”

    One doesn’t need to graduate at the top-of-their-class in a prestigious Law School to appreciate that the words like “uncertainty” and “troublesome” shouldn’t be needed to describe a Federal Court of Appeals Decision! Consequently, we must ask ourselves if we don’t expect that the Law becomes cloudier as it becomes overcast by political interests and objectives, and should that not be obvious to us now that such is the case, here!

    • There isn’t a “tribunal against TREB” — at least not officially. The Competition Tribunal has been forced, pursuant to a Federal Court order, to hear the Competition Bureau’s allegations as contained in their pleadings to the Competition Tribunal, in the matter involving TREB. The Competition Tribunal initially dismissed the Competition Bureau’s allegations.

  2. “Failures in waiting” verses the “Red-hot, yet cutthroat GTA market” and of course the latter keeps the former from having to wait very long! So, if we cut to the chase, what is the real impetus behind the Competition Bureau of Canada’s recent interests in organized real estate? Initially the Tribunal rejected the Competition Bureau’s claim against TREB on the grounds that TREB doesn’t compete with its members. The aforesaid was a significant ruling because, in part, it acknowledged that TREB’s market power couldn’t be ascertained because TREB doesn’t have any market power, per se’! Is the Competition Bureau, partly, a bloated Federal Government bureaucracy trying to justify its existence? Is Predatory Pricing only a real concern when something is manufactured in Canada, as compared to when it can be manufactured in a foreign Country and then sold for even less here — as a result of being sanction by a Trade Agreement?

    One of the key words that appears in the Competition Act is: “product”, and the first thing that we need to bear in mind about the word “product” is that it also refers to: “services”. However, as one reads through the section of the Competition Act that deals with Abuse of a Dominant Position, one doesn’t see any special consideration given to “services” as compared to “merchandise”! In other words, as far as the Competition Bureau of Canada is concerned, organized real estate, including TREB, might as well be in the business of selling “Baby Barns” — all of the same size and of the same basic specifications — it doesn’t matter within their argument. Consequently, what also doesn’t matter within the Competition Bureau’s argument and pleadings, is the relativity of the amount of any commissions that may be charged against the value of the actual property being sold, nor does the potential that a Buyer may pay far too much for a property, or that a Seller may not receive enough.

    What clearly isn’t up for debate, is the fact that organized real estate is an extremely competitive business. As a matter of fact, despite new Registrant’s/ REALTOR’s having any number of options to join various National Brokerage Brands for support and guidance, the normal thing for a new entrant to do, is: fail! The Competition Bureau’s own Lead Counsel (John Rook) used the word “cutthroat” to describe the nature of the level of competition in the GTA (Greater Toronto Area). The subject of real estate commissions needs perspective against the main product that is being sold. For illustrative purposes, a 5% commission level represents 1/20th of the overall selling price of a home. When CMHC (Canada Mortgage and Housing) apply a 20% variance factor with their Appraisal Software, the potential for a Buyer to overpay could be equal to 20% or 1/5th., of the value of the home or property — subject to underwriting limits. The simple point being that the subject of “commission” is really quite incidental to the subject of “competence”!

    At the center of the current matter is the website concept referred to as a: VOW (Virtual Organization Website). A full-blown VOW is intended to display all the listings of the VOW Brokerage itself, as well as all of the property listings of its competitors within a geographic area such as TREB’s area, for example. For this reason it must be regarded as an ‘organizational website” — it is not just a feed, as is the DDF from CREA. During this debate we have seen the word “innovation” come forth as a reason pursuant to the Competition Act, as to why the Bureau feels VOW’s are warranted, and integral to their argument is that with this innovation comes inherent cost savings to the consumer — presumed, strictly based on commissions only, of course. The main piece of data being contended for is: sale price data. By simply being able to share our restricted pass-codes to our internal Board or Association databases (on some kind of modified basis) we can satisfy the notion that consumers having direct access to said data amounts to “innovation” and easily end that discussion — if indeed, we must compromise on this point.

    So what of the commission savings to be had that are being heralded by the Competition Bureau Commissioner, as inherent to real estate consumer’s being able to do more initially without the involvement of a Registrant/ REALTOR — because of access to a VOW? We know that the GTA market is already a “cutthroat market” and we also know that a full-blown VOW is the size of a website platform that is typically funded by an entire organization — Board or Association. So the economy of scale needs to be considered, when suggesting there could be any reason to think a VOW can inherently accommodate lower commission rates. To suggest that a common individual could afford to buy and operate their own VOW is ludicrous, and the question remains to be answered as to how many Brokerages are large enough to buy and operate a VOW! The Competition Bureau’s argument that a Consumer doing more equates to a Registrant/ REALTOR doing less, is a superficial and vexatious argument, because it doesn’t consider the importance or relevance of Agency Working Relationships — it also assumes that the average consumer can do more. A Court would never see a Registrant/ REALTOR as being entitled to do less for a Client (full-agency) because his/ her Client had access to a VOW — it’s ludicrous to suggest otherwise. And on the other hand, the Customer (No-Agency) of a VOW who decides to remain a Customer takes their own chances when they believe there is money to be saved by buying as a Customer, from whichever Brokerage they might choose to approach.

    What I find to be particularly ironic in all this is that were CREA or TREB of the position that all Brokerages must offer a Full-blown VOW in order to participate as full members in CREA, the Competition Bureau of Canada would likely be at our door-step, but with a legitimate argument, consider the following (Bureau Material) as it relates to imposing higher entrance costs:

    “3.2.1
    Exclusionary Conduct

    In general, the Bureau is not concerned with conduct that forces competitors to be more effective, but rather with conduct that makes it more difficult for competitors to be effective. Exclusionary conduct is designed to make current and/or potential rivals less effective at disciplining the exercise of a firm’s market power, to prevent them from entering the
    market, or to eliminate them from the market entirely. Such conduct often does so
    by raising rivals’ costs.”

    We simply can’t be “more effective” by doing less for consumers. As a matter of fact inside a Full-Agency Client Relationship doing less isn’t even an option. Likewise, for us to suggest to a consumer that being a Customer is advantageous over being a Client, isn’t an option either. However we should be able to interpret from the Competition Act that there isn’t any intention within the ACT, or any mandate within the ACT, to raise levels of Competition to the point where common sense would dictate that inherent problems would likely ensue, as ethics succumb to desperation! In this regard, the Competition Bureau only needs to regard the words of their own lead Counsel (John Rook) in regards to the GTA market being “cutthroat” from the perspective of REALTOR behavior towards acquiring new business! It is already understood that we have levels of competition that are given to being problematic for the consumer!

    Consider the following excerpts from the Competition Bureau’s own Enforcement Guidelines:

    “78(1) For the purposes of section 79, “anti‑competitive act”, without restricting the generality of the term, includes any of the following acts:

    (4) In determining, for the purposes of subsection (1), whether a practice has had, is having or is likely to have the effect of preventing or lessening competition substantially in a market, the Tribunal shall consider whether the practice is a result of superior competitive performance.”

    Once again, in order for the Competition Tribunal to rule against TREB, it would be tantamount to the Tribunal ruling that by a Registrant/ REALTOR pursuing a Full-Agency Client Relationship and not trying to reduce their workload or hope for a reduction their workload, that such a work ethic is not consistent with a: “superior competitive performance”!

    When you look at what the Competition Bureau is attempting to argue (plead) the best way I can reason it, is with a quote from the Academy Award wining movie: “BRAVEHEART” when one actor said to another: I’m no coward either, but what you are doing now, just seems like rage”!

  3. Hey Alan M. Why don’t you update readers on article 9.2.3 from CREA’s bylaws and how TREBs blatant breach of this bylaw is allowed to on or how TREB’s decision to openly and willingly violate that bylaw may allow the CB a win.

    • Ross,

      Adults tend to make complete points, so if you have one — I’m sure your sock-puppets didn’t prevent you from making it.

  4. While “Storm water: Protecting clients from liability and risk” was a worthy featured REM article, were I a website designer I think that the potential money to be made from building and maintaining a VOW (Virtual Organization Website) would be the topic weighing foremost on my mind, at this time! Many people know that Geese like Parks and Golf Courses and the nutritious green grass usually associated with such places, but how many Real Estate Brokers know what they would face regarding financial costs, in terms of building and maintaining a: full-blown VOW?

    Perhaps Harry Niemi of Edmonton Webmaster.com, would like to comment here, regarding what a (VOW) win at the Competition Tribunal and thereafter, might mean for him and his company, potentially, financially — assuming that they have the ability to build such a platform (VOW)? I wouldn’t expect any public cost estimates or projections in relation to a VOW website build, until the matter is completely and finally resolved through all levels of the Courts, due to the basic and obvious conflict of interests.

  5. TREB’s case was laid in the coffin the moment a Supreme Court of Canada judge looked down upon the rest and told them they erred. It was nailed shut when a brokerage from where several past presidents of TREB hail, as well as the current president, made available for use a mobile app that shows sale prices. The member expense for this fight should be headed up under a new category – irony.

    • “A half-truth is the most cowardly of lies.”
      ― Mark Twain

      “…a Supreme Court of Canada judge looked down upon the rest and told them they erred.” Actually, the Supreme Court didn’t look down upon the “rest”, the Supreme Court of Canada instructed the Competition Tribunal to hear the matter: “on its merits”.

      The proponents of VOW’s (Virtual Organization Websites) should do themselves a favor and stay silent — if the “Done Like Dinner” effort is the best they’ve got, because when you can’t form an argument on the basis of the facts, you obviously don’t have an argument!

      Should the Competition Tribunal’s decision be served up “blue-rare”, then it won’t be “cooked like dinner” and I think we’ll all know that politics was the chef.

  6. With December 02nd. fast approaching, I don’t feel that the Competition Bureau of Canada’s case was thoroughly enough beat down, regardless of whether their lead Counsel did slam himself on the Tribunal mat.

    One of the features of the Competition Tribunals quasi-judicial nature is that the accused (in this
    case a Respondent, TREB) doesn’t get to face their accuser in quite the same manner
    as would be the case in a more typical judicial theatre. In particular, TREB’s lawyers’ don’t enjoy the benefit of directly examining the author (Competition Commissioner) whose pleadings, are contained in their “Application” that was filed to commence the current matter involving TREB. As if the Competition Bureau’s menacing fines and extensive Government resources weren’t already a substantial and intimidating advantage heading into any Tribunal Hearing, the Commissioner
    never really has to concern him or herself over the potential of finding themselves
    in the proverbial “hot-seat”. Of course, the aforesaid reality is made even
    more of a certainty in the broadest sense possible – when the Commissioner has
    left the building, for good!

    I can’t help but wonder if the current Competition Commissioner would have been perceived as
    being in the proverbial hot-seat, if he were to be sat down to answer the six questions that follow the subject quoted paragraph item “24”, from the Commissioner for Competition Bureau of Canada’s “Application” to the Tribunal, in the matter against TREB:

    “ 24. The efficiencies realized by VOW brokerages may be passed on to consumers in
    the form of price competition, through such means as commission rebates.
    Currently, there are VOW brokerages operating in the United States that offer
    to rebate up to 50 percent of the broker’s commission to the buyer. These
    brokerages can offer greater rebates to their customers owing to the
    efficiencies and cost savings made possible by VOWs.”

    1/ Mr. Pecman, is it not true that in the current real estate market there are service product options that for all intents and purposes would be naturally exempt from your projected, 50
    percent rebate, claim, starting with the product that you were instrumental in
    promoting, namely: “mere postings” – as it is not uncommon for such listings to
    offer a cooperating brokerage just: $1.00?

    2/ Mr. Pecman, is it also not true that in the current competitive real estate market there are service product options that could be perceived, by a certain number of Registrant’s (REALTOR’s) who seek to be paid a particular amount of commission, as already akin to being inclusive of rebates or discounts in excess of 50 percent? For example, when a Listing Brokerage offers a flat-rate cooperating selling commission of $3,000.00, on a $400,000.00
    property instead of 2.5%, the difference or differential in these two scenarios
    of $7,000.00 will likely be perceived by a certain number of Registrant’s as
    already being akin to a: 70% discount, and that furthermore, you can’t quantify
    to the extent that such might be the case?

    3/ Mr. Pecman, is it not true
    that your 50% projected potential rebate claim (which you attributed without
    foundation, to an unnamed VOW type brokerage in the United States) wasn’t
    qualified by the Competition Bureau within your Application, or put in any kind
    of context regarding how your projected, suggested rebate, or even a lesser
    rebate, may already be being offered by existing non-VOW type brokerages —
    that simply identify as “discount brokerages” anyway?

    4/ Mr. Pecman, is it not true
    that when companies do, in fact, create a more efficient business model that
    the main purpose for doing so is to increase profits, in the initial instance,
    and if there are also resulting savings to consumers this would not only be incidental
    to a company’s main objective, but that any savings to be had would only be
    offered by any profit minded company if they felt obliged to do so for
    competitive reasons – not simply because they could.

    5/ Mr. Pecman, is it not true
    that you have no authority whatsoever to speak on behalf of any type or brand
    of Real Estate Brokerage, in Canada, for the purpose of suggesting how much of
    a rebate they may or may not be willing to offer, or what their profit
    objectives might be in relation to the topic of rebates?

    6/ Mr. Pecman, is it not true that given the size and complexity of a full-blown VOW (Virtual Organization Website) that the cost of operating such an internet platform for a Brokerage should certainly exceed what it would cost to operate a typical Real Estate Brokerage marketing website? Furthermore, when a VOW contains all the information of an Association or Real
    Estate Board, plus the additional features you have suggested, the costs
    associated with operating such a website (VOW) should put a VOW type brokerage
    at a disadvantage against a non-VOW type Real Estate brokerage, that simply
    wishes to attract new business as a result of being identified as a: “discount
    broker”?

    One thing is for sure, a “hot-seat” may have some real value towards getting to the truth of a matter, but for some matters the proverbial “hot-seat” is only reserved for the common-man
    or woman, as it were.

  7. There has been a lot of noise around this entire discussion, but at the end of the day it boils down to what section of the Competition Act of Canada that the Commissioner made “Application” to the Tribunal under, and that is as per the following:

    “Prohibition where abuse of dominant position.

    79. (1) Where, on application by the Commissioner, the Tribunal finds that

    (a) one or more persons substantially or completely control, throughout Canada or any
    area thereof, a class or species of business,

    (b) that person or those persons have engaged in or are engaging in a practice of
    anti-competitive acts, and

    (c) the practice has had, is having or is likely to have the effect of preventing or
    lessening competition substantially in a market, the Tribunal may make an order prohibiting all or
    any of those persons from engaging in that practice.

    Marginal note: Additional or alternative order

    (2) Where, on an application under subsection (1), the Tribunal finds that a practice of anti-competitive acts has had or is having the effect of preventing or lessening competition substantially in a market and that an order under subsection (1) is not likely to restore
    competition in that market, the Tribunal may, in addition to or in lieu of making an order under subsection (1), make an order directing any or all the persons against whom an order is sought to take such actions, including the divestiture of assets or shares, as are reasonable and as are necessary to overcome the effects of the practice in that market.”

    When the Competition Bureau’s lead Counsel (John Rook) conceded, at the Tribunal the nature of the competition in TREB’s market as: “the red-hot, yet cutthroat GTA market.” he not only neutralized the Competition Bureau’s position and Application, he demolished the Competition Bureau’s argument and “Application” by paying TREB the ultimate compliment — through the inference that TREB’s market is even more competitive than he would have expected it to be, in view of the fact it is also a “red-hot” market!

    The only thing that is remaining to be decided for Canadians at the Competition Tribunal, is the quality of the Tribunal itself!

  8. “At the end of the hearing, Chief Justice Paul Crampton gave TREB and the Competition Bureau until Dec. 2 to come to an agreement before the tribunal renders its decision.”

    The final quote, in this subject article, strikes me as more than a little bit galling. Besides being a large Federal Government department with the authority to try and implement huge fines, the Competition Bureau of Canada can also utilize this unique quasi-judicial system to pressure respondents into making concessions that may or may not be consistent with what even the Tribunal would support, or advocate. In the interests of pure justice that should not be an option, as this part of this process.

    This current effort by Tony Palermo seems a bit more balanced than some of the previous coverage of this matter, as reported on REM. However, why was it so easy for a former TREB official to be portrayed — in a media sense — here on REM, as being the the “hot-seat” when answering questions from the Competition Bureau’s lead counsel? Does organized real estate automatically have less credibility because the accusations are coming from a significant and powerful Federal Government entity, or is the media just naturally swayed towards sensationalism? In fact, the media has a crucial role in reporting on Government matters, in order to ensure the kind of accountability that’s integral to a healthy democracy.

    We should also consider whether or not we have the same expectations of lawyers when they are acting as legal counsel for a Federal or Provincial Government entity, or more to the point, those who have retained them on behalf of us — the people. Lawyers have been referred to, from time to time, with any number of derogatory terms, “mouth-piece” is one that comes to mind. The perception of lawyers can be that they are hired to do a job and that they have an inherent obligation to speak or advocate on behalf of those who have hired them — consequently, the words that they say aren’t necessarily what the lawyer may personally believe, because the matter isn’t about what they believe. So what could happen when a lawyer makes a major slip and says something that we know they believe (“the red-hot, yet cutthroat GTA market.”) because it is an incontrovertible fact? In a regular Court by judge alone, the matter can be stopped at just about any point where he/ she deems they have heard enough.

    While the Tribunal and the Competition Bureau of Canada wait for December 02nd., to come around, the latter may want to consider that the only reason I believe this matter hasn’t blown up in their faces properly, is because our media hasn’t looked closely enough at what is going on. I don’t think that organized real estate is the biggest part of this story anymore and really never was. I think that the biggest part of this story is the Competition Bureau of Canada trying to finish something that was started by someone — who is no longer there. To answer my own question in the above paragraph: yes, we should and must have higher expectations of lawyers when they are representing our Government — because when playing to win means setting aside the truth, it becomes a fundamental attack on democracy itself!

    • The statement, “At the end of the hearing, Chief Justice Paul Crampton gave TREB and the Competition Bureau until Dec. 2 to come to an agreement before the tribunal renders its decision.”, did not include necessary context. The Chief Justice was referring to a deadline for the parties to come to an agreement on who would pay costs. He wasn’t setting a deadline for a settlement. If the parties don’t agree on who pays the costs of the litigation, the Panel will include this in its decision.

      • Bill,
        The panel should decide costs based on the merits of each sides case — which is inherent to any decision; the point shouldn’t be significantly severable.

      • Excerpts of pertinent Act — Competition Tribunal Rules

        “Discontinuance

        · 26. (1) An applicant may discontinue all or part of an application at any time before a final determination of the application by the Tribunal.”

        “Withdrawal

        27. (1) A respondent who has filed a response may withdraw all or part of the response at any time before a final determination of the application by the Tribunal.”

        “Costs

        58. If a party denies or refuses to admit the truth of a fact or the authenticity of a document after receiving a request to admit, and the fact or authenticity of the document is subsequently proved at the hearing, the Tribunal may take the denial or refusal into account in exercising its discretion respecting costs.”

        Bill, the subject of who and how costs are paid, should fundamentally follow 58., — with or without a formal request to admit.

  9. I’ll probably get deleted again. Censorship alive and well @ remonline. This case will be key in modernizing data access for purchasers everywhere in Canada (as it will set a precedent for other real estate orgs across the country.) Instant access to data such as days on market and prior sales price is critical for these purchasing decisions in an age of comprehensive data access and competitive markets where buyers need to make fast decisions. `Protecting privacy` is an absurdly flimsy argument- an honest heart will admit these numbers are with-held to protect profit, nothing more. The data available through American realty portals leaves the Canadian system looking woefully insubstantial and lacking rationale for the oft-ridiculous pricing. The year is 2015 and the industry must adapt. Just my two-cents.

    • You ought to join some of the U.S real estate groups in Facebook, there you’ll quickly learn 3 things:

      1- the U.S realty portals offering the date you speak of such as Zillow/Trulia are woefully inaccurate. Often they provide wrong sale and even listing prices and worse, state properties are listed or have been sold recently that have not been on the market. These errors are causing Realtors all sorts of headaches as they field calls from irate past clients who want to know why their property is listed for sale when it isn’t or has been sold for a price that it was not.

      2) the majority of U.S portals do not, I repeat, do not get their sale prices from the MLS since only a minority of the MLS Systems actually co-operate with them in this regard. The majority pay to obtain sales prices from county records.

      3) this has done nothing to deter 6% Commission fees despite the plethora of discount brokerages nor have all manner of incentives and business models trying something new.

    • Why would anyone sensor such an insightful cowpoke like yourself — it couldn’t be true!

      I’ve seen new construction homes that didn’t sell because the color used to paint out the main floor walls turned buyer’s off, and when the color was changed they sold, quickly; likewise for homes that were staged badly — but, having unfiltered “…access to data such as days on market…” now that’s what “is critical” for making “purchasing decisions in an age of comprehensive data access” — before someone heads out on the old buying trail. In Canada, we may have done away with our cents but not our sense — because you can have the reins in one hand and the data in the other, but if you don’t buckle up your saddle boy you won’t get very far down that trail, before you fall off your horse!

  10. One of the arguments that the Competition Bureau was putting forth initially, was that TREB was trying to stifle “innovation” and within this subject article we now have CREA counsel Sandra Forbes suggesting: “Viewpoint’s growth and success might instead be because of the quality of its agents, effective management or its website’s innovative features.” — without clarifying what those innovative feature might be. On this score, it would seem that the Competition Bureau’s lawyers were smarter if they walked away from the controversial “innovation” hat-stand, if they realized that the word “innovation” was in reality being substituted for “circumvention”. A good percentage of Real Estate consumer’s have always wanted to have access to Registrant’s or Practitioner’s pass-codes to our internal industry data-bases, but it has historically been a serious breach of our rules to share them. Fundamentally, a VOW (Virtual Organization Website) makes the prohibition against us sharing our industry pass-codes redundant, as their (VOW) basic functionality largely circumvents the rules preventing the sharing of our industry database pass-codes.

    However, we shouldn’t lose sight about what the main burden of proof relates to, and that is the question of competition, so let’s consider what the Competition Bureau’s lead counsel is attributed to have said, in part, in this current article:

    “Counsel John Rook reinforced the Competition Bureau’s position, stating it believes TREB has
    substantial or complete control of real estate brokerage services in the GTA; that TREB has exercised that control in a manner that has had the effect of creating or maintaining its market power to the benefit of its members; and that this has substantially lessened competition in the real estate marketplace.”

    A lawyers summary statement is supposed to include all of the key points that they have brought forth in relation to a matter and I find that there is something missing from the above quote. Let’s consider the above quote when combined with what has been attributed to John Rook previously and paraphrase as per the following:

    Your honor, it is our position that TREB has substantial or complete control of real estate brokerage services in the GTA; that TREB has exercised that control in a manner that has had the effect of creating or maintaining its market power to the benefit of its members; and that this has substantially lessened competition in the real estate marketplace, which is evidenced in no uncertain terms, by “the red-hot, yet cutthroat GTA market.”

    The only Canadian who is eminently qualified to be cast in the role of making the above comedic argument is of course our superstar: Jim Carey. However, had Jim Carey been cast in this role the Tribunal would’ve had to dismiss the matter — on the basis that they couldn’t get past all the outtakes!

    The definition of Cutthroat is: “—used to describe a situation in which people compete with each other in an unpleasant and often cruel and unfair way”

    The synonyms for Cutthroat are: “unprincipled, immoral, Machiavellian, unconscionable, unethical, unscrupulous”

  11. I find it interesting that as this matter moves along, there still hasn’t been any reference or connection to the potential impact of what is being suggested, in terms of promoting a Customer status scenario against or over a Client status. There also hasn’t been (at least not reported here) any discussion about how an individual Registrant or Practitioner would or wouldn’t be able to offer a VOW type service (as being discussed) and ergo compete effectively, in their own right, when you consider the financial cost of operating a Full-blown VOW! Were VOW’s to become the standard — as I believe they must once the door has been opened — if it means that individual Registrants or Practitioners can’t compete or afford to operate these VOW platforms, how could it not be obvious that the end result is a diminishing of the over-all level of competition?

    Were VOW’s (Virtual Organization Websites) to become the standard, in order to ensure that all members could compete effectively on an individual basis, all Real Estate Boards and Associations would need to reconfigure their internal databases so that their members could provide their “pass-codes” to their their Clients and possibly even their Customers, so as to be able to compete on a level playing field with a full-blown VOW. This reconfiguration would be necessary to, primarily, hide the names of the Seller’s of all the properties on these/ our internal data-bases — which would henceforth no longer be internal, per se’.

    I also find it remarkable that through the course of all the submissions at the Tribunal hearing around the topic of “privacy”, there hasn’t been any discussion (at least not reported here) about how a VOW can accommodate third-party emails in a manner similar to what REALTOR.ca does. In other words, should a Client of a Registrant or Practitioner decide to utilize a competitors VOW and said Client email their own REALTOR through the competitors VOW platform and email server, it creates a situation where a competitor would theoretically have a unique potential access to private email correspondence — that is also part of an Agency Working Relationship. The aforesaid, isn’t an issue, when a neutral REALTOR.ca is being utilized.

    The following are two paragraph excerpts from the Commissioner of the Competition Bureau’s Applications to the Tribunal against TREB:

    “23. VOWs make brokerages more efficient. For example, the use of a VOW allows for the
    transfer of the task of searching information on the MLS system from the broker to those
    customers who wish to do so. This reduces or eliminates the time and expense incurred by
    brokers. In effect, customers use a VOW to educate themselves about the residential real estate
    market and the properties available. The additional information provided through a VOW assists
    customers in narrowing down the properties in which they are interested, allowing brokers to
    spend less time responding to questions and showing properties that are ultimately not of
    interest. In this and other respects (described further below), VOW brokers operate more
    efficiently than traditional brokers who provide MLS information only by traditional methods,
    such as in a “bricks and mortar” environment.”

    “24. The efficiencies realized by VOW brokerages may be passed on to consumers in the
    form of price competition, through such means as commission rebates. Currently,
    there are VOW brokerages operating in the United States that offer to rebate up to 50 percent of the broker’s commission to the buyer. These brokerages can offer greater rebates to their
    customers owing to the efficiencies and cost savings made possible by VOWs.”

    The above two Articles from the Commissioner for the Competition Bureau’s Application amount to a guarantee of Consumer savings — if they use a VOW, as opposed to the more traditional industry service. It’s important to keep in mind that the “traditional service” provided by our industry has been working with consumers within a Full Agency Relationship and treating them as Clients. How could the Commissioner’s claims not be seen as potentially discouraging Agency Relationships and ergo potentially interfering with Agency Relationships?

    The main premise of the Commissioner’s two Articles, quoted above, is that VOW’s are more efficient because Real Estate Consumer’s are better able to disseminate Real Estate data or information, than are Registrants or Practitioner’s — if the Commissioner’s insulting claim is reasonable and acceptable, what could the Commissioner possibly say that wouldn’t be reasonable or acceptable? What do Real Estate Registrants or Practitioner’s have to say regarding those instances when Clients have asked to see homes that weren’t identified by the Registrant or Practitioner — my experience has been that we’ve inconvenienced the Seller’s, if they weren’t planning to be out anyway, but in addition, we’ve also wrongly given them some false encouragement? How could the aforesaid problem not be even worse, when the consumer is but a Customer?

    Consider the Commissioner’s following statement from above: “Currently, there are VOW brokerages operating in the United States that offer to rebate up to 50 percent of the broker’s commission to the buyer.” The Commissioner’s statement, if true, draws an assumption that the rebates mentioned are tied to the fact that the Brokerage operates as a VOW, as opposed to the possibility that the Brokerage just wants to be perceived as a “discount brokerage”. The Commissioner’s assertion, reminds me of when Dustin Hoffman’s character in the movie “Joan of Arc” challenges her as to her belief that certain events she experienced were signs from God, and she finally capitulates and admits she saw the signs as such evidence because that was how she wanted to see them!

    The Commissioner for the Competition Bureau of Canada, is clearly a devote proponent of the “discount brokerage” model, even to the exclusion of the, Client, Agency Relationship — the latter of which, never factors into the Commissioner’s advocacy regarding what is in the best interests of Canadian consumer’s. For the Competition Bureau of Canada, the price that a property sells for, or what someone might pay for it, must be a non-issue — if, the subject of Agency and the extra obligations the Courts place on Registrant’s or Practitioner’s who work inside a “Full-Agency Relationship,” is a non-issue!

  12. I can’t believe how far the Competition Bureau is trying to take this argument. The TREB’s points are valid and in my opinion the case needs to be thrown out. It is like the Competition Bureau has a personal vendetta against TREB and other real estate boards across Canada. If a client does not give me permission to post their sale price in an advertisement why should I or the board allow others access to it?

    • Jim if a potential seller called in and asked you what their neighbor down the street sold for, would you pass the sale price on to them?

      • I guess it depends on what he needs the information for….. Any consumer with a little imagination can go online, and type in homevalues.ca and ask for a FREE market evaluation for any home. All they need to do if they do not want to called back by an agent is put in a phony name, phony phone number, and create a temporary gmail account. Ask for a MARKET EVALUATION on any specific property and the agent on the other end will send them a report with a list of comparable homes including the one they want. Takes two minutes to do.. So is this information available to the general public….YES. So what’s the big deal. This is a total waste of PUBLIC Tax dollars to prove a point. The question is not if TREB has MARKET POWER to force people to use a Realtor. The real question is “Are privacy laws being crossed?” No one is being forced to use a REALTOR. Anyone with a computer can retrieve this information.
        Now is the Realtor in violation by supplying this information? Many are doing it with no repercussions. It’s up to the public to decide if they want their sales being sent out over the internet to anyone who wants it. Who is the Consumer Bureau protecting? What is the purpose of all this?

          • LOL… i just used that as an example.. hmm… wonder what they want for it? housevalues, what’s your home worth, any of those would work…

        • If its no big deal then why are we defending it? And Allan is correct, why don’t we all offer it? If we all did, then there would be no competitive advantage being given to the large corp looking to simply feed off of our hard work. Your comments also prove why the privacy issue won’t stand up in this court…or any court.

          • HWR,

            Baby steps are better than nothing, you got this much right: ” competitive advantage being given to the large corp looking to simply feed off of our hard work.” — so let’s try to build on this! As far as trying to quote me is concerned, well I’m flattered, but you’re not quite ready for that yet and you’ll need to rely on my judgement to let you know when I think you are.

          • I think we are on the same page … but looking at it differently.

            First we can all offer free information.. it’s up to you to decide how you give out this information. I do not believe the TREB is anti competitive and the Consumer Bureau is wasting our time.

            I view The Real Estate Board as being a gatekeeper to this information for its members to use to supply a service to their clients. This is what I refer to when I say “if the general public wants access to this information, all they have to do is ask any member of that board and it is Freely given in a market evaluation”. No one is charging for this information. At least not in my neck of the woods… We as Realtor’s have to make a rational decision why someone would want it and what its purpose of use is. In our case its to provide an estimate of value for their home. Someone has to take responsibility for gathering it, putting it into a database and monitoring its validity!

            And The Consumer Bureau wants to see this in the hands of the general public or worse corporations?

            I wonder if the Consumer Bureau would give me access to their database? Oh I forgot they are the government and abide by a different set of rules…..

            My argument is this…. the Bureau is barking up the wrong tree. Wasting valuable resources fighting with the TREB over something that is readily available if someone really wants it. But can we at least monitor its use so that it doesn’t fall into the wrong hands by holding us Realtor’s accountable.

          • “But can we at least monitor its use so that it doesn’t fall into the wrong hands by holding us Realtor’s accountable.”

            First define “the wrong hands”. Then note how you’d prevent that from happening. Would you only hand the documents over in person? How would you prevent the data from being redistributed? It’s an impossible task.

            Regardless, this info isn’t private, it’s privileged at best. If TREB were interested in privacy, they wouldn’t release the data. Period.

      • And that would be the same, as everyone who has access to the internet having complete and unfiltered access to a decades worth of SOLD data, just by signing in with an email address? Reason: “the power of the mind to think and understand in a logical way”

        I might tell the neighbour — if I knew they weren’t just being nosy, but equally as important: if it sold for under market value due to factors that aren’t typically or properly articulated in the text overview, or might not be apparent in the photos, I wouldn’t want the neighbour to draw the wrong conclusions about where the market was going and start spreading the false word around. The protection or filtering of information can also protect the market.

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