The Toronto Real Estate Board’s attempt to take its fight over real estate data to the Supreme Court “would serve no purpose other than to enable the board to re-argue the same points it has already lost twice,” according to the Commissioner of Competition.
TREB is seeking to appeal a lower court ruling in December that enabled realtors to post the sales histories of homes and other restricted MLS data on their websites. TREB has long fought this, saying it violates client privacy and its own copyright over the information.
In a response to TREB’s application, the Competition Commissioner refers to the board’s data restrictions as “exclusionary conduct” intended to insulate its members “from a new and potentially disruptive form of competition.”
The realtors who publish sales data online are “technology-based innovators,” who want to “provide better quality and expanded services to consumers using their password-protected websites,” the commissioner states.
“As the Court of Appeal and the Tribunal noted, innovation benefits the innovator but also forces rivals (here, TREB’s members) to respond. That leads to even broader benefits for consumers.”
The December decision by the Federal Court of Appeals was the latest setback for TREB in its seven-year dispute with the Competition Commissioner over access to sales data. That decision upheld a 2016 Competition Tribunal ruling that ordered TREB to make its data accessible through the online realtor sites.
Previous sales prices for homes are publicly available through the land registry office, but TREB’s 49,000 realtor members have instant access to sales histories through the board’s Multiple Listing Service (MLS) database. Though the realtors are permitted to release the information to clients through “traditional means,” such as by fax, email or by hand, TREB has fought efforts to make the information available through password-protected portals on websites.
TREB argues that posting the sales data violates the privacy rights of clients dating back to the 1980s, who never granted their permission for the information to be distributed widely on the Internet.
A previous decision against TREB by the Competition Tribunal concluded that argument was “an ‘afterthought’ to try to justify (TREB’s) anticompetitive acts,” the commissioner states in the filing. In its decision, the Federal Court of Appeals noted that the data in question was already available to thousands of members who were in turn permitted to release it to up to 100 clients at a time.
“This case does not raise any intellectual property or privacy issues that warrant this Court’s attention,” the Commissioner’s documents state.
TREB also argues that its restrictions can’t be considered anti-competitive because there is no “quantifiable evidence” that the information gives realtors a competitive advantage. This might include a count of how many visitors to the realtor’s website eventually signed on as clients.
This argument “would break from almost 30 years” of law, the commissioner states, during which the Competition Tribunal has determined acts to be anti-competitive based on the evidence of industry witnesses.
The Commissioner has asked the Supreme Court to dismiss TREB’s application. Though the court can take as long as it wishes to make a decision, the average time between the filing of an application and a decision is nearly four months, according to the court’s website.