Toronto Star
Competition watchdog loses online-listing case against Toronto Real Estate Board
It was a high-profile war of words between Ottawa’s former competition watchdog and the country’s biggest real estate board — and it ended with a whimper rather than the potentially damaging ruling that many realtors had feared.
Interim Commissioner of Competition, John Pecman, said his office is “disappointed” and will be reviewing the decision released Monday by the competition tribunal.
The densely worded, seven-page ruling dismissed allegations of anti-competitive practices by the Toronto Real Estate Board on a technicality: The Commissioner filed the case under the wrong section of the Competition Act, said the tribunal after months of costly legal preparation and two months of hearings into the case in Toronto last fall.
In dismissing the case and awarding TREB costs, the tribunal said the case “does not fall under the 2012 Abuse of Dominance Guidelines” and is “inconsistent” with subsection 79 (4) of the Act which applies to competing firms.
A better section, the tribunal says, would have been Section 90 of the Act, which deals with behaviour by trade associations.
“We will be reviewing the Tribunal’s decision to determine our next steps,” said Pecman in a statement on the complex case which had been initiated by his predecessor, former Competition Commissioner Melanie Aitken, and escalated into a public feud with the country’s largest real estate board, which represents more than 35,000 realtors.
“The Tribunal’s decision was the right decision,” said TREB president Ann Hannah in a statement Tuesday on the ruling, which many realtors feared could have forced real estate boards across the country to give up their exclusive control of the Multiple Listing Service (MLS) and provide critical information, such as historic sales data, to new online competitors seeking to offer cheaper, a la carte services to consumers, often from the comfort of their home computers.
“TREB and its members will continue to offer the highest possible quality
real estate service without sacrificing the privacy rights of consumers.”
real estate service without sacrificing the privacy rights of consumers.”
While the tribunal ruling sets out a road map, of sorts, for moving ahead with the case under Section 90 of the Competition Act instead, it cautions that there is no guarantee of success.
“This could just be the beginning of another long and costly legal process,” said realtor Lawrence Dale who, as president of the discount and now defunct firm Realtysellers Real Estate Inc. first raised concerns about what he believed to be TREB’s anti-competitive practices with the Competition Bureau.
Dale likened the tribunal’s ruling to saying someone was charged with speeding when they actually made an illegal right turn: The ruling makes clear that the case still has merit, noted Dale, who is now head of group real estate with Rogers Communications’ expanding online real estate venture Zoocasa. com.
“This should be a wake-up call for all sides to use this as an opportunity to negotiate a fair settlement,” said Dale Monday evening, stressing he’s still determined to see the MLS system opened up.
That more open access has revolutionized house hunting south of the border and allowed buyers and sellers to cut costs and do far more of their own research from the comfort of their home computers through online sites such as Zillow.com and Trulia.com.
TREB has already moved, under intense pressure from Aitken over the last five years, to provide more MLS data to so-called virtual office websites now springing up across the GTA to take on traditional “bricks and mortar” brokerages with hosts of new online real estate offerings.
TREB members routinely hand out rich MLS information to clients via phone, email and in person that is key to making real estate decisions, such as the historic sales prices of homes. But TREB told the tribunal it was opposed to opening up access to the same information to online competitors because that would violate privacy laws, professional regulations and copyright laws.
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