On Thursday, August 23 2018, the Supreme Court of Canada (SCC) declined to hear an appeal that has been over seven years in the making.
For the last seven years, the Toronto Real Estate Board (TREB) and the Competition Bureau have been litigating over the issue of sales-data policies. It all began when the Competition Bureau brought an action against the TREB, alleging that TREB was harming innovation by restricting Virtual Office Websites (VOWs) – an alternative form of a traditional real estate brokerage office – from accessing large chunks of the data in the Multiple Listing Service (MLS) data feed, including historical sales-price data.
Without question, alternate forms of real estate brokerages, like VOWs, were suffering at the hands of the TREB and their restrictive regime. So too were new agents to the scene, who were not a part of TREB.
Many brokerages obtain new clients by cold calling residents who live close to a home that just sold. The brokers will share how much the potential clients' neighbours home sold for, and what kind of offers were placed on the property, in an effort to persuade these clients to also sell their home and to sell it with the realtor on the other end of the cold call. However, only real estate agents who are TREB members have access to sales price information, historic sales and realtor commissions, which meant that other agents and VOWs were at a disadvantage (or at least they used to be!).
On February 3, 2014, the Federal Court of Appeal (FCA) set aside the Federal Competition Tribunal's order dismissing the Commissioner's Application and the FCA referred the matter back to the Tribunal for reconsideration. At this re-hearing, which took place on April 27, 2016, the Federal Competition Tribunal determined that the sales-data policies were too restrictive, so much so that they contravened the Competition Act. According to the Tribunal, the practices of the TREB were an "abuse of dominance." In 2017, the FCA agreed, and the court dismissed TREB's appeal.
However, the TREB was not backing down. TREB fought for a total of seven years to keep the information at issue in the hands of Toronto real estate agents, arguing that posting the data more publically would violate consumer privacy. In 2017, the Board sought leave to appeal the Federal Court's decision to the SCC.
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