The man at the centre of the Competition Bureau's fight with the Canadian Real Estate Association will not be allowed to intervene in the case.
Federal Court Judge Sandra Simpson said Lawrence Dale - whose company RealtySellers is frequently mentioned in Competition Bureau court filings as a victim of anti-competitive rules in the real estate industry - wouldn't be allowed any special standing when the case begins later this year.
It was the first Competition Tribunal hearing into Competition Bureau's charges that the Canadian Real Estate Association makes it impossible for competitors to offer innovative services to consumers, such as flat-fee listings or à la carte services based on minimal levels of service.
CREA amended its rules in February to allow such offerings, but not to the satisfaction of the commissioner, who felt the association left itself wiggle room to change the rules again in the future.
Is it a good time to lock in your mortgage rate or are variable-rate mortgages the way to go?
Wednesday's hearing was held to determine whether Mr. Dale would be granted intervenor status - which would have effectively made him an active participant in the process, rather than a witness or an observer.
Mr. Dale asked to appear because after starting a discount service called RealtySellers on the association's Multiple Listing Service in 2000, he "faced concerted efforts by CREA and its members to drive us out of business."
Mr. Dale says he thought he was operating within the CREA's rules, but these were changed in 2006 and he was denied access to the system. This effectively put him out of business, he said.
His lawyer said Wednesday that Mr. Dale had invested more than $1-million in the site, before shutting it down.
"Without access to the MLS system it is not possible to effectively conduct a resale residential real estate brokerage business or provide real estate services," his affidavit read.
He had asked to intervene to ensure his side of the story was told, but Judge Simpson said he could accomplish the same thing by appearing as a witness.
Judge Simpson said she was concerned that Mr. Dale, who has a "massive" outstanding lawsuit against CREA, would use the hearings to gain access to files he may not otherwise be able to see. He's been allowed to appear as a witness, she added, ensuring his perspective is heard.
He'll also have an opportunity to comment on any proposed resolutions.
"While we thought is was appropriate in the circumstances to be an intervenor, with the assurances given by the parties before the tribunal that I will be able to give evidence of what happened to us and more importantly that I am able to provide input on the remedy to be imposed against CREA, we have achieved most of what we were practically seeking," Mr. Dale said.
His position that he could offer a unique perspective from the business community was also rejected by the judge.
"What you have presented is a bald statement with no substance behind it," she said. "Just because [Competition Commissioner Melanie Aitken]represents the public and you represent business doesn't have any meat."
The National FSBO Network - a small for-sale-by-owner listings website based in Ottawa - also sought intervenor status. Stephen Skelly argued that Ms. Aitken didn't mention anything about alternatives to MLS, such as the site he operates, leaving the mistaken impression that there are no other ways to sell a home in Canada aside from using an agent.
He will be allowed to file a statement, but that will be the extent of his intervention, Judge Simpson said.
"Mr. Skelly's role will be very limited," she said as she ruled from the bench, adding that she will file the reasons for her decisions next week.