By Heath Applebaum

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.

19 COMMENTS

  1. From time to time I review competitors websites to make sure I’m up to date on the latest innovations.

    I recently happened upon a website that belongs to a practitioner who is with a major franchise brand. The website is designed better than many and is user friendly. This website even boasted of offering a VOW (virtual organization website) service, but it was the following offer of the practitioner that I found to be of particular interest: “I make myself available at all times. My web site is here to help you 24 hours a day. You can search listings at your own convenience, browse reports, and read up on real estate info on your own terms. When you are ready to see a listing in person, or just have a simple question, please dont hesitate to contact me.” The impression that a reader could get from this in particular the last two sentences, is that booking an appointment to see a home isn’t any more significant than asking a simple question.

    Our main concern with providing access to sellers homes that is based largely on a buyer’s discretionary request, should be that it is simply inconsistent with any notion of professionalism. We seem to be encouraging ready access to seller’s homes even more so than we did in the past, by still simply acquiescing to a buyer prospects request for access, but now based on them having some sort of website access to information — in particular if the website in question happens to be a VOW (virtual office website or virtual organization website depending on the size of the platform).

    In the event I’m correct with my observations, it would mean that in some cases we have not only regressed by providing loose access to seller’s homes, we may be even encouraging such access more overtly — whether intentionally or not!

  2. Bravo, to the Competition Tribunal Of Canada for it’s clear legal opinion regarding its April 30, 2015 ruling concerning CREA’s policies as it relates to access to “mere postings”. Also, congratulations to the Canadian Real Estate Association and its attorney’s! I hope the Competition Bureau appeals because I would enjoy hearing the same decision all the way up to the Supreme Court.

    Our House of Commons and our Canadian Parliament is where our Democracy is defined. Various Federal Government Agencies do many different things and perform many different functions, and when they work properly they are good instruments of our Federal Government. As I continue to contemplate the initiatives of the Competition Bureau of Canada, as it relates to Organized Real Estate, I can’t help but feel that the Competition Bureau has crossed a line, and exercised more than just its policing authority regarding Organized Real Estate because the Competition Bureau has taken it upon itself to define this industry — which should be beyond their entitlement.

    “Mere postings” are by their very nature, a label and a designation that the Competition Bureau of Canada has applied regarding the present and future of Organized Real Estate in Canada. Through the promotion of “mere postings” the Competition Bureau of Canada has decreed Organised Real Estate as not being worthy of or requiring of the goal of becoming a Professional Industry. Were a Medical Doctor to allow a patient to perform surgery on themselves, in the surgery room, it would likely be a criminal matter. When a real estate practitioner allows a customer to perform surgery on themselves, it’s just considered competition because what we do, basically, just comes down to what we charge — because how could anything go wrong?

    What evidence did the Competition Bureau of Canada ever collect, or what research did they have, that proved to them that real estate commissions represented definitive value the vast majority of the time, as opposed to an entirely superficial discussion because the real cost of services was only determinable after a property actually closed? Apparently our product (our services) and its value, is no more complicated a topic to the Competition Bureau of Canada than a familiar brand of breakfast cereal. As an industry we seemed to be drawing the correct conclusion that we needed to redefine ourselves, and start to compete better and broader where we were the weakest: the area of competence and ethics.

    One of the links that Merv Burgard has provided below will take you to the Competition Tribunals April 30th., decision regarding CREA. I’m going to quote some passages from the Competition Tribunals ruling that speak to the subject argument of the Competition Bureau Commissioner:

    ” [44] The Commissioner’s interpretation of the agreement
    would mean that any distinctions between CREA members and private sellers are
    discriminatory, no matter how minor. Had the parties agreed to place,
    effectively, private sellers in the same position as agents in respect of
    realtor.ca, clauses 3(c) and (e) would have been unnecessary.”

    One of the most obvious flaws in “mere postings” that couldn’t even pass from a “situational ethics” perspective, is the question of any advertising a seller might do on their own: print-medium or internet. In a traditional listing this subject is properly addressed by the exclusive nature of the listing to the listing brokerage, and a managing broker is responsible to review and approve all advertising. The seller of a “mere posting” isn’t bound by our ethics or regulations. Should a buyer see an unapproved advertisement that was created by the seller of a “mere posting” and then realize the property is listed on the Multiple Listing System, the advertisement could wrongly receive an automatic credibility that it wasn’t entitled to. This situation isn’t reasonably manageable and gives rise to the potential for abuse. I’ve read the “mere posting” agreements and this situation has never been addressed. It would be of critical importance, both ethically and morally to be absolutely clear as to what is the work-product of a practitioner verses what is the work-product of the non-practitioner (mere-posting), but this isn’t happening.

    One of the links Merv Burgard provided is to a May 01, 2015 article in the Globe and Mail that condemns the recent Competition Tribunal ruling, (regarding mere postings) in favor of CREA. The Headline reads: “Competition tribunal’s ruling a blow for home sales by owners” and one paragraph reads: “The ruling is a setback for Ottawa’s competition watchdog, which has been pushing hard to break the real estate industry’s control over the housing market.” The author is indicated as: TAMSIN MCMAHON Globe and Mail May 01, 2015

    It’s unbelievable to me that comments (drivel) like this (above) would be reproduced in a major Canadian newspaper. I don’t see where a post secondary education comes into play here with editorials like that one — it would be better suited to a day-time soap opera, with such concocted drama. Seller’s of homes have always been free to deal with whomever (buyer’s) they want — so that control never existed. There were numerous Private Seller options to consumers, prior to the Consent Agreement that was signed in 2010. Although the most powerful search engine on the internet (Google) wasn’t mentioned in Melanie Aiken’s original filings, it’s also available to private seller’s or anyone else who puts something up on the internet. Perhaps the Globe and Mail reporter also hasn’t heard about the phenomenon everyone else knows as: Google!

    The best part of all is, that the main strength behind the Multiple Listing Service hasn’t come from being on it, it’s come from being apart of it, and being apart of it means: having the door to your business fully-wide-open!

  3. I’ve read TREB’s response to the Competition Bureau original filings and it is indeed an excellent read. TREB has correctly anticipated and or projected what a full-blown VOW could represent. Real estate practitioners and others could learn much about this industry by reading TREB’s response.

    In terms of the proponents of VOW’s (virtual organization website) much of their argument seems to center around the word: “innovation”. The Competition Bureau of Canada also hasn’t been shy about promoting the use of the idea of innovation, as being significant to what they’re trying to push forward. Innovation is a simple word that essentially means: “the introduction of something new”. New is usually good, but the real question is: who stands to benefit, and is potential consumer benefit about equal to the benefit of those who hope to prosper financially as a result of the introduction of the: innovation?

    I’ve also recently read a key witness statement relating to the Competition Bureau of Canada’s action or filing with the Competition Tribunal against TREB, and it was an interesting read, but it was pretty much what I expected. Let’s be clear, this is a difficult industry to succeed in and having the financial ability to be able to launch a VOW is one way to bypass those who are already standing in front of you — blocking the path to the head-of-the-line. The concept of a VOW (virtual organization brokerage) isn’t about innovation, it’s about expediting a business plan in what is a very competitive industry, and some VOW’ proponents acknowledge this fact indirectly, but clearly, through the course of all that they scribe.

    As industry members or as non-industry members, who would be the least bit surprised that a VOW would enjoy a very high web-traffic count. After all, with the exception of the names of the sellers not being made available on a VOW, having access to a Virtual Organization Website is like a real estate practitioner sharing their personal industry pass-code with a consumer (non-practitioner) to their Real Estate Associations internal database — and therein lies the main attraction! Real estate practitioners have typically been forbidden to share their industry pass-codes with clients, however a VOW is entitled to give pass-codes out to their customers!

    A consumer who regularly checks a VOW for current information, is like real estate practitioners use to be, before we gained the ability to send instant alerts directly to buyer clients, by email, using the prospector technology. The email alert ensures that a client receives instant notification about new listings and price changes, without committing their own time to act in the old ways. The time it takes for new listings to appear on REALTOR.ca is a moot point, in the face of email alerts — a decade and a half old, technology. So where is the real VOW benefit to customers? Customers of a VOW are subject to the VOW broad Disclaimer Statement. What happens on a VOW when a new street isn’t mapped yet; how does the customer find out about such a new street of homes?

    One of the pro-VOW witness’ statement to the Competition Tribunal, lists on fourteen occasions, in different sections of their statement (some multiples of which are in the same numbered paragraph) how a VOW will save their real estate practitioner’s time, as a result of not having to perform a task or something that would be typically required of a traditional real estate practitioner. The effect of this is that it frees up time to: show homes, write offers, and do those things that make more money for the brokerage.

    If VOW’s are something that organized real estate end up being forced to accept, and I certainly hope not, it would be preferable for a Board or Association to operate it, because these organizations are directly accountable to their members. Should this happen, the proponents of VOW’s (virtual organization website) will have lost their edge, and their impetus.

    • Alan M. I don’t know your location but this latest CB submission reads like it was written by someone who fell asleep since the inception of the last hearing and the submissions for this one. TREB had undertaken studies prior to the last hearing, and approved them even before it ended but the CB chose to pretend that didn’t exist. They started coming online shortly thereafter and unless I’m mistaken Zoocasa and the RedPin are VOWS.

      The CB’s current submission would lead one to believe they’re asking for something that TREB is currently denying her members – it’s all smoke and mirrors to fan the media’s coverage and inflame the public. In the end, all the fluff in the CB submissions for the upcoming hearing about allowing VOWS is filler since the issue is still making (unlimited) sales data available to the public and whatever additional demand they’ll toss in for good measure. At present VOWS allow customers 100 sales records.

      Sad part is that most of those, in my opinion anyway, are either HGTV addicts needing a 24 hour fix; nosey people or those who just want to use the information to predict doom.

      • Ped,
        A limitation on a number of sales records would and could vary from Province to Province, but a Full-Blown VOW can’t work and can’t settle for those limitations. TREB indicated that they had some concern in their initial response that a VOW could become the face of the MLS, and a Virtual Organization Website can indeed accomplish that. Consequently, at a certain web-traffic flow or level, you’re clearly entertaining more than just addicts and or the nosey. Don’t underestimate the potential of what a Virtual Organization Website can and will mean.
        When the general public have promoted access to unfiltered sales data without context, it sets the stage for serious incorrect market perceptions — particularly should a property sell for less than the assessed value, or a lot less! Virtual Organization Websites will also show market time and price reductions. The market time on a new home that hasn’t been built yet, is usually substantially longer (some aren’t even started) than a resale home, but when this information is not put in context, the wrong market impression can also be drawn. Likewise for a re-pricing (reconfiguring) on a new construction that will only be referenced on a VOW as a Price Reduction. The market-time on a resale home where an objection has been corrected, can also be unfairly viewed (market time) against the seller — in the absence of proper context.
        A powerful VOW that does become the face of an MLS system, should cause you to reconsider how you counsel your clients, for example seller’s. When serious buyers decide to utilize a Virtual Organization Website, as Customers and they notice that a home has gone Conditional, but it is Subject to the Sale of Buyer’s Property, do you expect that they will understand the full meaning of this particular type of Conditional Sale – or even notice the applicable acronym? Depending on the influence and market penetration of the VOW, the Notice Period (24 hours etc.) that is usually attached to a: Subject to Sale of Buyer’s Property type clause, could become a moot point. Just recently, I had a great deal of difficulty explaining the concept of: Subject to Sale of Buyer’s Property, to an I.T. Professional employed by our Federal Government.

  4. As Canadians, I think its fair to say that we take our democratic freedoms
    seriously, but at the same time not frivolously, so as to abuse them or flaunt
    them. Within our democratic mindsets we might not be shocked to realize some
    politicians have put themselves first, and enjoyed themselves incorrectly, at
    the expense of citizens. However, we associate concepts such a disinformation
    as being something foreign and not weaveable into the Canadian fabric.
    Consequently, when our high level Federal bureaucrats or entities put something
    in front of the public, it’s going to carry a fair bit of weight.

    When I read much of what has been said officially by the Competition Bureau of
    Canada in relation to this subject issue, I can’t reason it against what I know
    of this industry and in some cases I just can’t reason it, based on simple
    reason. Take the following paragraph from the CBOC’s website dated September
    10, 2012 — which I’ve referenced, previously:
    “VOWs are password-protected websites that permit customers to search a
    full inventory of listings containing up-to-date data online, before making the
    decision to tour a home or attend an open house. This enables customers to be
    more selective and focused, and agents to spend less time trying to find an
    appropriate property for a specific customer.”

    Regarding the above referenced paragraph. Agents (REALTORS) naturally: “spend
    less time [because a customer isn’t a client] trying to find an appropriate property
    for a specific customer.” — the aforesaid (CBOC) statement ignores the significance
    of Agency Relationships and how they are meant to develop. With: “before making
    the decision to tour a home or attend an open house.” the Competition Bureau
    demonstrates that they don’t recognize a difference between the aforesaid two events,
    when in fact the former should usually involve fully prequalified prospects, whereas the latter
    (open house) can involve anyone off the street. How would it be reasonably possible
    for a customer to be “more selective and focused” as a result of a “full inventory” search
    that included those properties that they couldn’t possibly be interested in, as opposed
    to a “more specific” property search that involved some refined search criteria, involving
    those properties that they might possibly be interested in?
    When one reviews the Competition Bureau online statements, such as what I’ve covered
    in the preceding paragraph, it gives the impression that the Competition Bureau didn’t
    take the time to properly research organized real estate in Canada, because to think
    otherwise, would be to suggest that the Competition Bureau of Canada, is just playing-to-win.

  5. Alan M., TREB does not list a single expert in this area on their witness list. There are 5 witnesses TREB needs to gather impartial unbiased information from and witness testimony from to end this non-sense once and for all. These are HIGH PROFILE public sector employees not in anyway connected with TREB in any manner. Why have they not been called??

    VOWs are not and never have been a “customer” level service but were created and have been maintained as “client” level service. Under RECO when any registrant shares information with the public it is a “walk like a duck” scenario, in every decision ever rendered by RECO.

    VOWs are a Client Level Service and as such any registrant who issues password and logins to people, is in clear violation of REBBA and all 3 Code of Ethics, registrants as members of TREB must adhere to or lose membership rights.

    Has TREB issued a single update to you folks addressing these items above???

    • Ross,

      I believe that the VOW proponents will continue to try and argue, that the absence of practitioner discretion makes the providing of unrestricted and unfiltered industry data, acceptable.

      The VOW concept “Virtual Organization Website” encourages an initial self-serve mentality, which is inconsistent with what consumers should be encouraged to do –particularly buyers. Consumers should be encouraged to choose — in the first instance — who they would like to work with, regarding a particular industry, real estate, practitioner — instead. With this concept, the choosing of a real estate practitioner becomes secondary, and in the end may likely favor a face that has been constantly streamed in front of you on the VOW.

      Imagine if TREB was to constantly promote just the same 1% of its membership, day in and day out, how that would effect competition!

      • This organized real estate sales business is definitely morphing into a Barnum and Bailey Circus environment with registrants becoming more like “LOOK HERE! LOOK HERE!” carnival-barkers than low-key professional advocates.
        A few months after one (often without a job) decides to become a Realtor (after having completed the exhausting three two-week pre-licensing courses), what is the first thing that an office manager/trainer conditions the newbie-hire to do? Answer: Create a professional-looking website; make out that one is a professional; create a false image by omission of the fact that one is an amateur.
        The brokerage has only one thing on its agenda…bring in listings; produce product for the shelves to be filled with. Whether boat loads of listings are captured by a few long-termers or by a bevy of newbies is of no matter to the brokerage. In fact, the more newbies who are scrambling for a piece of the finite listing and/or buyer pie the better, because each and every piece of newbie on-line advertisement has the brokerage’s name front and centre…free of charge to the brokerage. The brokerage can’t lose; only the newbies can lose, and most lose.
        Where does the public fit into this three-ring circus overseen by CREA, provincial associations and local boards? Answer: It doesn’t fit in much any more. The public is going to more and more by-pass the carnival-barkers simply due to the fact that virtually anyone can try out to become a carnival-barker-roadie, and the public knows this to be fact. Smooth, expensive national TV ads and professional-looking personal websites to the contrary, the public is nevertheless cottoning on to the big ruse.
        Funny how we never see national, provincial and local newspaper/radio/TV/website advertising campaigns extolling the virtues of using the services of professionals such as: doctors; dentists; engineers; architects etc. I did not mention lawyers as being included within the foregoing list of professionals because it used to be that lawyers could not advertise, but now they are falling into line with the commissioned income chasers and are beginning to brag about how they can sue for more for less (for ‘free’ even) if they don’t win (except for the large retainers and disbursements which are never mentioned within their misrepresentative ads). It’s sad what working for a commission or for a percentage of a potential lawsuit-win can do to a person’s sense of self worth in the three-ring-circus mid-way-world of the carnival barkers. This is what happens when there are far too many carnival-barkers vying for limited passers’-by attentions and their limited resources.
        Cool professionalism is definitely becoming subservient to hot-air-driven hollow chest-thumping of the internet variety.

        • Brian,

          I felt it was circus-like a long time ago, but back then it was like a three-ring circus. Now, you can’t even count the number of tents, and if we do have a Ring-master, ironically it would seem to be a powerful federal government entity.

        • Brian,

          One of the Carnival-Barking practices that truly astounds me is: “Buyer rebates”. The Canadian Chartered Banks have historically been very diligent at subtracting or netting out any rebates that have shown up as part of a real estate contract (Purchase and Sale Agreements). Our Chartered Banks have also been very diligent at confirming where the equity funds are coming from for the down-payment, on any mortgage. As things stand now, the amounts of selling commission being offered a cooperating brokerage –regarding an MLS type listing — could be increased (artificially) so as to be able to offer a higher rebate to a buyer, from the selling agent — upon the closing. As these rebates probably aren’t showing up within the Purchase and Sales Agreements, they don’t seem to be showing up on the Banks radar.

  6. 3rd party tech companies disguised as new registrants are attempting to hide behind the ignorance of the CB about outdated technology that has been in use by 1000’s of TREB members for almost a decade. Personally speaking I offered electronic access to ALL relevant MLS data for my clients under the existing rules organized real estate continues to operate under, for almost a decade.

    Disguising a request for an OPEN DATA MLS SYSTEM under the guise of innovation that has been in existence for years and years is nonsense and ridiculous. Maybe the CB finds theredpinone ads innovative and new because the missed the same ads and same offers back in 1990 with other registrants.

    The CB has accepted Myth over Fact and has decided to prosecute TREB on those Myths. The concern is why has TREB not supplied the CB with the information that is available to the public to debunk and disprove these VOW “innovation” myths.

    OPEN DATA is not VOW. VOW is a term tech leaders in the profession created and have used for over 10 years to describe the offering of registrant compliant real estate services face to face electronically, instead of requiring a physical onsite presence of both parties.

    OPEN MLS is a concept rooted in the FSBO model and 3rd party marketing companies who want to con the public into believing they are innovative, new and on trend. We want to use the same pictures, the same details, the same google maps, the same neighbourhood info, the same comparables but……we will be innovative, new and on trend;)

    Pear Tree caused great concerns in the real estate community as an effective FSBO competitor more than 15 years before ComFREE and Property Guys ever existed. Pear TREE caused organized real estate to step up and improve their services by offering a superior marketing product in many ways than what was offered by the majority of registrants in 1989.

    Today the FSBO guys offer less than the worst REALTOR and have now piggybacked onto realtor.ca to survive.

    Where you have been lucky in the past is that these attacks have come form groups who were ignorant to the system, the rules and the practices of those who trade. Unfortunately that is where the next wave of attacks will not make the same mistakes.

    • Ross,

      Great letter.

      You’re absolutely correct, in that the use of the word “Innovation” is a sales-pitch word, however I think it’s more open to interpretation as to whom the key salesperson was that pushed it (the myth). Take for example the following paragraph from the Competition Bureau of Canada’s website, from September 2012:

      “Many real estate agents are eager to offer new, innovative services for consumers through the Internet,” said Melanie Aitken, Commissioner of Competition, “but TREB’s anti-competitive behaviour is essentially restricting potential homebuyers and sellers from taking advantage of a greater range of service and pricing options when making one of the most significant financial transactions of their lives.”

      If Melanie Aiken was referring in the above paragraph, to: VOW’s with her use of the phrase “Many real estate agents eager to offer” — she completely ignored how exclusive VOW’s are from a cost perspective, to make the claim that she did!

      The following paragraph is from the same article, on the Competition Bureau of Canada’s website:

      “VOWs are password-protected websites that permit customers to search a full inventory of listings containing up-to-date data online, before making the
      decision to tour a home or attend an open house. This enables customers to be
      more selective and focused, and agents to spend less time trying to find an
      appropriate property for a specific customer.”

      Of what significance is it, if: “VOWs are password-protected websites…” when anyone online can acquire a password and access, simply by accepting a “Terms of Use! When claims are made that are of no real consequence (moot), it’s nothing more than an attempt at a spin!

  7. This topic or issue is arguably the most important matter currently, as it relates to professional real estate. TREB is to be commended for its position and for showing some real leadership.

    One of the business’ models the Competition Bureau of Canada will open the door for — should their claim against TREB be successful — has been commonly referred to as a: VOW (Virtual Office Website) We first need to consider what it is we’re actually talking about. I would suggest that the use of the word “office” profoundly understates the nature of what a full-blown VOW really represents! A full-blown VOW can and will contain all the information of a Real Estate Association’s website and or database and more. Consequently, in its largest form the acronym: VOW, actually stands for: Virtual Organization Website.

    So what is the real potential impact of a: Virtual Organization Website (VOW). For one thing it’s an exclusive concept that the average real estate practitioner couldn’t afford to operate. It’s very doubtful that an average small or medium sized brokerage could afford to launch and operate such a website. Imagine a VOW that was so large its competitors felt obliged to advertise on it — instead of spending that money to improve their own marketing websites. That’s right, it’s not going to be just a VOW, it’s actually a: VOWB (Virtual Organization Website Broker).

    We can even expand on the definition of a: VOWB, because a Virtual Office Website Broker can increase in size, to include the real estate data of more than just one Real Estate Association or Board. Consequently such a: VOWB, could have the acronym: VMOWB (Virtual Multiple Organization Website Broker. At about this point, you should start to wonder how the average real estate practitioner would compete against such a behemoth: VOWB let alone a: VMOWB!

    The following is an excerpt from a 2006 Decision of our Federal Court of Appeals, involving a different industry:

    “With respect to abuse of dominant position, Tribunal erring as to test
    applicable under s. 79(1)(c) — Tribunal conducted analysis from narrow,
    absolute perspective of whether program prevented entry, competition when
    should have addressed whether competitiveness substantially lessened in
    presence of program..”

    In it’s original decision in dismissing the Competition Bureaus claim against TREB, the Competition Tribunal ruled in favor of TREB on a technicality based on TREB not competing against its members. I believe the Tribunal does here this matter again they should once again dismiss the Competition Bureaus claim against TREB, because a VOWB (Virtual Organization Website Broker) does compete against the members!

    I think it’s important to note, that the current Commissioner of the Competition Bureau of Canada, did not commence the initial action or claim regarding this subject matter and TREB.

    • Consumers who access the VOW (Virtual Organization Website)
      are initially treated as “Customers” – meaning the relationship to the Brokerage
      operating the VOW is a “No-Agency” Relationship – unless they are later converted
      to Clients.

      Real Estate Practitioners generally and most typically work
      closely with a consumer early in the process, thereby creating a “Client Relationship”
      or “Agency Relationship”. This would be particularly true when someone (buyer
      or seller) has been referred to the Real Estate Practitioner, REALTOR. For a
      Real Estate Practitioner working within a Traditional Brokerage Model, it would
      be very odd to receive a request to show the Property Listing of a Competing
      Brokerage, to a “stranger “ – someone whom they hadn’t met or hadn’t been
      referred to; for a Real Estate Practitioner working at a VOW Brokerage Model,
      it would likely be exactly the opposite reality!

      Traditionally, when a stranger has called a REALTOR to see a
      listed property, the request has involved a property that was listed
      specifically by the REALTOR (individual) who was being contacted, or if not, it
      was (at least) a property that was listed by the Brokerage that the REALTOR was
      licensed with. This situation allowed and allows, for a high level of
      accountability (security) to property sellers, in terms of the Listing
      Brokerage they had/ have chosen, and how its sales people prequalify (financially
      and otherwise) strangers who contact the Brokerage asking to see their active
      property listings. The Brokerage that they have listed with is directly
      accountable to them. A VOW (Virtual Organization Website) Brokerage displays/
      promotes not only its own Property Listings, but also the Property Listings of
      competitor Brokerages. The concept of a VOW, is one where the VOW could
      possibly receive more inquiries on the listings of its competitors, than it
      will on its own – assuming that its competitors collectively have substantially
      more Property Listings.

      With the presence of a full-blown VOW (Virtual Organization
      Website) in a marketplace, Property Seller’s listed with a Traditional
      Brokerage Model will have, potentially: involuntarily and unknowingly forfeited
      some of the responsibility of the prequalifying and evaluation of Buyer
      Prospects (particularly strangers) away from the Brokerage that they have actually
      contracted (chosen) to represent them.

      When any Brokerage is interacting with a Buyer or Seller and
      treating them as a “Customer” they can’t cross or perform any “Agency Duties”.
      When Real Estate Practitioner, REALTOR’s promote Client or “Full Agency
      Relationships”, we know more about those whom we show through the homes of Seller’s. A person can know their client; a website can’t
      know their person.

  8. Maybe this unanticipated delay will have greater purpose. The fallout from the stateside arrangement is playing out in court in more ways than one – With the merger of Zillow and Trulia (a future dominance challenge perhaps?) and various MLS Systems now yanking their feed to one or both of those and with the below alleged theft of databases. There is generally a greater ulterior motive for those wanting access to that which they’re not entitled other than what they state and is accepted at face value after all no for-profit organization operates as a charity and so there is yet another lesson or several here that maybe our American friends can help us to avoid. There are also numerous other complaints which I’m sure will eventually surface during the lawsuit. This is just the latest installment of the fascinating mess created years ago by America’s equivalent of our Competition Bureau.

    “Move and the National Association of Realtors state in a court filing obtained by HousingWire that Move received a letter from an anonymous whistleblower which “appears to confirm” their belief that Errol Samuelson, now the chief industry development officer for Zillow (Z), stole “multiple documents and entire databases” when he worked at Move, and that Zillow is using the stolen information, and is hiding evidence on non-Zillow electronic services.

    Move and the National Association of Realtors filed suit against Zillow on March 17, 2014, after Samuelson, Move’s chief strategy officer, resigned from Move on March 5, 2014, and joined Zillow as the company’s second-highest paid executive on the same day…”

    More on this lawsuit in link
    http://www.housingwire.com/articles/33530-move-anonymous-whistleblower-confirms-massive-data-theft-by-zillow-samuelson

  9. As a non-member of TREB, I don’t totally understand what is going on with this issue. Can someone explain what the ‘fight’ is about?

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