The federal Competition Bureau's case against the Toronto Real Estate Board ground to a halt on its first day Monday after the real estate board said it was planning to ask the Chief Justice of the Federal Court of Canada to remove himself from hearing the case because of his involvement with a similar lawsuit more than a decade ago when he was a lawyer in private practice.
William Sasso, a lawyer for TREB, said he intended to bring a motion asking Justice Paul Crampton to recuse himself because he could appear to be biased, but said the real estate board needed more time to go through its records to build its case.
Lawyers for both sides scrambled last week after Justice Crampton disclosed that he had been involved in early talks with Realtysellers, a now-defunct discount brokerage that sued TREB for alleged anti-competitive practices in 2002. At the time, Justice Crampton was a partner at Toronto law firm Davies Ward Phillips and Vineberg LLP, specializing in competition law.
Justice Crampton said he had little to do with the lawsuit beyond having what he called "two to three very, very short" phone calls with representatives from Realtysellers in mid-2001, a year before the brokerage filed its lawsuit.
He left the firm in early 2002 and moved to France to become head of outreach at the Organization for Economic Co-operation and Development. He was named to the Federal Court in 2009 and appointed chief justice in 2011.
"I certainly remember no involvement [with the case] whatsoever," Justice Crampton told the tribunal.
John Rook, a lawyer for Competition Commissioner John Pecman, said staff at the Competition Bureau spent the weekend scouring through old records looking for evidence of Justice Crampton's involvement with the lawsuit and a complaint that Realtysellers made to the Competition Bureau in 2002. The only evidence they found was that the judge was copied on a letter between Realtysellers and TREB in 2001.
"We've been working very hard and what we have produced is pretty thin gruel if you look at it," Mr. Rook told the tribunal. "Maybe there won't be anything more to make [TREB's] gruel into porridge."
Realtysellers sued TREB and the Canadian Real Estate Association (CREA) in 2002 alleging anti-competitive practices. The lawsuit was settled in 2004, although Realtysellers founder Lawrence Dale is involved in a separate lawsuit against the real estate industry, which has been going on since 2009.
The lengthy dispute caught the attention of the Competition Bureau, which is now suing TREB in hopes of breaking the real estate industry's stranglehold on the Multiple Listings Service. The MLS allows realtors to share crucial information on the local real estate market, such as the previous sales history of a home and how long a property has been sitting on the market.