There was an interesting development this week in the growing dispute between the federal Competition Bureau and the Toronto Real Estate Board (Canada’s largest real estate board) regarding the online publication of home sales information from the Multiple Listing Service (MLS). This particular development, which requires a bit of back story to truly understand, could have wide-reaching implications for Canada’s economy, particularly in areas “dominated by trade associations or market-dominating joint ventures that control competitively sensitive information,” as argued by John Rock, a lawyer working on behalf of the Competition Bureau.
To sum up the dispute, TREB wants to restrict real estate agents and brokers from publishing home sales data provided by MLS on their personal listing or brokerage websites. Tamsin McMahon of The Globe and Mail, has written extensively on the dispute, and provides an excellent synopsis of each party’s position. As stated by Donald Affleck, an attorney working behalf of TREB, one of the board’s primary directives is to protect the personal information of consumers, any sensitive data (such as historic home sales figures) that could violate an individual’s right to privacy as guaranteed in the Charter of Rights and Freedoms.
“The evidence makes it clear that the vast majority of home buyers and home sellers do not wish to have the sold prices of their homes available to anyone with access to the Internet.”
The Competition Bureau is demanding that TREB relinquish its MLS data to brokers who want to publish it on “virtual office websites.” Rock believes that the board’s restrictions make it more challenging for individuals to purchase a home on their own without the need for a real estate agent. The overall goal being, to keep the realtors, not the consumers, at the centre of the real estate transaction.
The development that occurred this week had to do with an attempt made by TREB to remove Chief Justice Paul Crampton from the Competition Tribunal case over concerns of bias, stemming from evidence that TREB claims, proves the Crampton has long-standing ties with the real estate industry that go back over a decade. According to details provided by Tamsin McMahon in another article published in The Globe and Mail, William Sasso, another lawyer working on TREB’s behalf, said that he intended to bring a motion asking Justice Crampton to recuse himself, but argued instead that the real estate board needed more time to go through its records to build its case. Crampton allegedly gave advice to a brokerage that persuaded them to sue the Real Estate Board. Crampton himself determined that the board had not proven he could reasonably appear to be biased against TREB on the basis of “two to three brief telephone conversations” he had with the founder of Realtysellers, a now-defunct discount brokerage that sued TREB in 2002.
As it turns out, the Canadian Real Estate Association (CREA) is participating in the hearing, appears to be siding with TREB in the dispute, judging only by comments made by CREA lawyer Sandra Forbes. According to Forbes, there is “scant evidence” to suggest that offering real estate data online increases competition, and that websites like realtor.ca are still popular among consumers even without historical sales data.