By Tony Palermo
The Toronto Real Estate Board (TREB) has filed an application with the Federal Court of Appeal to stay the Competition Tribunal’s June 3 order, which requires TREB to, in part, stop its “anti-competitive practices” and not exclude sold and other disputed data from its virtual office website (VOW) feed.
Filed on July 8, if TREB’s application is granted, the move would effectively put the conditions of the order on hold until the appeal is heard and a decision rendered.
Speaking to REM for the first time since the Competition Tribunal’s ruling, TREB CEO John DiMichele says he wants to “set the record straight” and make sure that “people have the whole story.” He insists that, at no time, has his board acted in an anti-competitive manner.
“It has to be made clear that TREB has never opposed the distribution of sold data,” says DiMichele. “What we have said is the consumer, that is the buyer and seller, has a right to choose, in accordance with the law (how their personal data is released.)”
The point that is being lost, says DiMichele, is that it is the consumer’s choice to make, not anyone else’s and that privacy laws not only support this position, but require it.
“Privacy laws say that when there are new uses of information, or uses not previously identified, you have to get the consumer’s consent,” says Von Palmer, TREB’s chief communications and government affairs officer and chief privacy officer. “Regardless of what the Competition Tribunal said in its decision, TREB’s position has always been that we’ll respond according to the consumer’s wishes. We have that obligation under law.”
Palmer says studies show that the majority of Canadians would not give their consent to broad dissemination of their house’s final sale price.
A recent TREB news release points to a 2012 Angus Reid poll which, it says, finds that 75 per cent of Ontarians want the final sale price of their home to remain confidential, and that the same percentage of consumers believe that their personal information should be kept confidential by Realtors.
In responding to the argument that VOWs are just another way of doing business and shouldn’t be restricted, DiMichele disagrees.
“All you need is a valid email address and you would have unlimited access to all of this data,” says DiMichele, in explaining how a VOW would look under the Competition Tribunal’s order. “There are members of the public out there who think they can be data companies. When you work with a Realtor, access to the data is controlled. Both the Ontario Superior Court and Court of Appeal have ruled before that the Realtor acts as a buffer and controls the release of information so that it is used only for its intended purpose.”
DiMichele says according to the order, the entire archive of disputed data would be exposed, which also raises serious concerns.
“In the ʼ80s, there were no consents,” he says. “People did not contemplate the Internet.”
However, Lawrence Dale says TREB’s privacy argument is just smoke and mirrors.
“Any reasonable person would understand there is no privacy issue here,” says Dale, a lawyer who has been battling TREB for years and was instrumental in opening the door to alternative real estate brokerage models. “Privacy (laws) work to protect information from either being given out or not.”
Dale argues the disputed data is already available and given out on a daily basis by Realtors, as it has been for years. How then, he asks, can there possibly be a privacy concern?
“Look, this is about TREB controlling the way that the information is given out to restrict certain methods that the tribunal has said are illegal,” says Dale, a position also supported and successfully argued by the Competition Bureau during the tribunal hearing.
Another argument TREB disputes is that the disputed data should be made available on a VOW because the data is already available as a matter of public record.
“People say ‘well, it’s a matter of public record’ but I say the record is publically available,” says DiMichele, who says there is a clear difference. “If you want the information, you have to go down to the registry office, pay your $8 and then you get your records one at a time.”
That’s a far cry from having it all readily available on the Internet, he says.
In an emailed statement, Competition Bureau senior communication advisor Taylor Bildstein says, “The Commissioner of Competition remains focused on addressing TREB’s appeal and achieving a timely remedy to fully address the concerns raised in his application.”
As part of the tribunal’s June 3 order, TREB was to pay the Commissioner of Competition, within 30 days of the order, just more than $1.8 million to cover costs related to expert witnesses, disbursements and other legal fees. It remains unclear if TREB fulfilled this obligation. When asked if TREB complied with this part of the order, DiMichele replied “that’s in the lawyers’ hands,” and referred the question to Jeff Rosekat, one of the lawyers representing TREB in their appeal.
As of press time, Rosekat had not responded to REM’s request for comment.
The Competition Bureau also refused to comment, indicating that “as the matter is before the courts, it would be inappropriate to comment further.”