The Toronto Real Estate Board is studying ways to ensure Greater Toronto Area home sales data is “protected,” as realtors have rushed to publish the numbers, some of whom posted them publicly, without requiring a password for access.
TREB fought the Competition Bureau to prevent the release of home sales data online for seven years, citing privacy and copyright concerns. It had been ordered by the quasi-judicial Competition Tribunal to allow realtors to share a greater amount of data with clients on password-protected websites and took the ruling to the Federal Court of Appeal and lost, then turned to the country’s top court.
The Supreme Court of Canada’s refusal last week to hear TREB’s argument put a 2016 order that gave TREB 60 days to allow publication of the data into effect. That prompted a flood of companies to start publishing the numbers.
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However, questions remain about TREB’s intention to protect the data, when the order actually takes effect and whether sites that have not required passwords have violated the board’s rules.
Real estate online listing portal Zoocasa was among the companies that rushed to publish home sales data and did not require a password, so anyone visiting the site could see the data. But on Monday, it said the data would now only be available to visitors using a password. It did not provide a reason.
Lauren Haw, the chief executive officer Zoocasa, said in a statement that her company plans to turn to TREB for guidance on how the industry can use the information going forward, but did not say why Zoocasa, a TREB member, posted the numbers without using password protections or waiting for TREB’s advice.
TREB wouldn’t say if it will take legal action against companies that released the data but didn’t use VOWs. The board, which represents 50,000 realtors, also refused to answer questions about whether it is ready to give up its fight to let the data be posted online.
The board “will be studying the required next steps to ensure such information will be protected in compliance with the tribunal order once that comes into effect,” board chief executive John DiMichele said in a statement. The board declined requests for interviews and follow-up comments.
Because TREB appealed the order at least two times since it was released, there is debate over when the order and the 60 days of preparation time comes into effect. TREB believes the clock started running on Thursday with the Supreme Court decision, but the Competition Bureau told The Canadian Press it thinks the time ran out long ago amid TREB’s numerous appeals.
But real estate experts said TREB has little, if any, chance of getting the order modified.
“I think this is the final round... This should be it,” said Jonathan Bitran, a McCarthy Tetrault lawyer specializing in competition and anti-trust cases. “There could be some esoteric angle (TREB is) thinking of, but it would be not a regular course type of thing.”
He said it’s possible that TREB will try to come to an agreement with the Competition Bureau on any outstanding concerns it has and they can together ask the tribunal for modifications, but without many previous cases of this nature, Bitran was unsure if even that would work.
Cameron Forbes, the general manager at the RE/MAX Realtron Realty Inc. brokerage, said he thinks TREB’s talk of “protecting” the data is probably just the organization wanting time to further consult with the 50,000 agents it represents.
Before anything is posted, realtors need to be educated on what can be published, he said.
“There is a lot to how you implement something like this,” he said. “It doesn’t just happen.”
The Real Estate Council of Ontario – a provincial regulator for real estate salespeople and brokers – said the ruling does not require it to change its regulations. But the council said it suspects TREB still has to make adjustments to its restrictions around the display and use of sold prices through VOWs before members can begin publishing the data.
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TREB could crack down on those already posting the data, especially if it is not in compliance with the order, but it’s really anyone’s guess if TREB will chase companies, who are complying with all aspects of the order except for the timeline, Bitran said.
“Are they really going to chase someone if they are going to be obligated to allow them to do that 60 days from now?”