The Competition Tribunal re-hearing of the Competition Bureau’s complaint against the Toronto Real Estate Board (TREB), originally scheduled for May, has been delayed. TREB was granted an adjournment until Sept. 21.
The ultimate decision regarding the residential MLS policies of TREB will have far-reaching implications for real estate boards and brokers across the entire country. The federal Competition Bureau is determined to break TREB’s policies covering crucial real estate information such as home sales data, which TREB believes will compromise buyer and seller privacy and other matters.
To provide a quick snapshot of recent events, on March 31, 2014, TREB filed an application for leave to appeal the Federal Court of Appeal’s decision to the Supreme Court of Canada. On July 24, 2014, the Supreme Court denied TREB’s application, which means that the tribunal must now reconsider the Competition Bureau’s application on its merits.
Both the Competition Bureau and TREB will have an opportunity to file new evidence to the tribunal in advance of the re-hearing, and to recall previous witnesses or call new ones during the re-hearing phase. CREA has intervener status and will also be permitted to submit new evidence. Most of the re-hearing will be open to the public, unless there is confidential information being presented.
Asked why this case is dragging on for so long, Greg Scott, senior communications advisor for the Competition Bureau told REM: “Every case is different. Depending on the complexity, some cases take longer than others. What is important is that we look forward to resolving this matter as quickly as possible, in order to ensure that consumers and real estate agents alike can benefit from increased competition for residential real estate brokerage services in the Greater Toronto Area.”
TREB CEO John DiMichele elected to provide no response to REM’s questions beyond an emailed quote: “TREB is confident in achieving a successful result.”
Asked if the Competition Bureau believes there is potential to reach an agreement with TREB before the September re-hearing, Scott replied, “Whenever the bureau identifies instances of alleged anti-competitive behaviour, our preference is always to reach a mutually agreeable resolution with the parties to address those concerns. When that is not possible, the bureau does not hesitate to take appropriate action as it did in the TREB matter. We continue to remain open to resolving this matter in a mutually agreeable way that addresses our concerns.”
Scott added, “As TREB is Canada’s largest real estate board, it was especially important to resolve these concerns. Its decisions have a significant impact on thousands of consumers and real estate agents every day.”
The bureau wants to send a clear signal to real estate boards across the country. “We believe that a legally binding resolution that puts an end to TREB’s alleged anti-competitive practices will send a strong message to other boards that may be engaging in similar actions, or considering doing so. Should the bureau determine that other organizations are engaging in similar behaviour, it will not hesitate to take appropriate action.”
Regardless of the decision of the tribunal in September, TREB still has the right to appeal that decision to the Federal Court of Canada, meaning this legal marathon is far from over.