Antitrust Law Daily Wrap Up, ANTITRUST NEWS: Canada High Court dismisses real estate board’s application to appeal pro-competition ruling, (Jul 28, 2014)
The Supreme Court of Canada (SCC) has dismissed an application by the Toronto Real Estate Board (TREB), seeking leave to appeal a February 2014 decision by the Federal Court of Appeal (FCA) that ordered the Competition Tribunal to reconsider its ruling in the Canada Competition Bureau’s case against TREB, the Bureau announced on July 24.
The Bureau welcomed the decision, noting that a prohibiting TREB’s anticompetitive practices and allowing real estate agents to provide the services of their choice is the only way to ensure that consumers and real estate agents can benefit from increased competition for residential real estate brokerage services in the Greater Toronto area.
TREB is the largest real estate board in Canada, with approximately 39, 000 members. The majority of local real estate transactions make use of the Toronto multiple listing service (MLS) system, which is an essential tool for agents to help customers buy and sell homes, according to the Bureau. The Toronto MLS system contains data about previous listing and sale prices, historical prices for comparable properties in the area, and the amount of time a property has been on the market, which is more detailed than what is available on public sites.
In May 2011, the Bureau filed an application (Commission of Competition v. Toronto Real Estate Board) with the Tribunal, challenging restrictions that TREB had imposed on its members’ use of data in the Toronto Multiple Listing Service (MLS) system. In its application, the Bureau sought an order prohibiting TREB from enacting, interpreting and enforcing rules, policies and agreements that prevent or impede the entry of innovative business models. The application specifically sought to prohibit TREB from imposing restrictions on its member agents who want to use the Internet to serve customers more efficiently.
While the Tribunal dismissed the application against TREB in April 2013, the Bureau appealed the decision before the FCA. In February 2014, the FCA ruled the Tribunal’s decision was based on an overly narrow interpretation of section 79 of the Competition Act, which is the "abuse of dominance" provision. As a result, the FCA ordered the Tribunal to reconsider the Bureau’s case on its merits. The SCC’s decision means the Tribunal must now proceed with its reconsideration of the case.
News: Antitrust