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Judge rejects real estate board’s call to step away from competition case

A ‘For Sale’ sign is seen in Toronto.

Darren Calabrese/The Globe and Mail

The Chief Justice of Canada's Federal Court dismissed a move by the Toronto Real Estate Board to have him taken off a Competition Tribunal case over concerns that advice he gave a brokerage that sued the real estate board more than a decade ago gave him the appearance of being in a conflict.

Speaking about what he said was a unanimous decision by the three-member panel of the Competition Tribunal, Justice Paul Crampton said the real estate board had not proved he could reasonably appear to be biased against TREB on the basis of "two to three brief telephone conversations" he had with the founder of Realtysellers, a now-defunct discount brokerage that sued TREB in 2002. At the time, Justice Crampton was a practising lawyer specializing in competition law.

The development is the latest twist in a long-standing dispute between Ottawa's Competition Bureau and Canada's largest real estate board over how brokers can share home sales information from the industry-owned Multiple Listing Service. The federal competition watchdog is looking to compel TREB to hand over more data from its MLS to brokers who want to publish it on "virtual office websites."

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Competition Bureau lawyer John Rook argued Tuesday that the real estate board is unfairly discriminating against its own members by not allowing them to post some data, such as a property's sale history, on password-protected websites. The board's restrictions are stifling innovation in Toronto's real estate market and could have wide-reaching implications for other areas of the Canadian economy that are dominated by trade associations or market-dominating joint ventures that control competitively sensitive information, he said.

Roughly three-quarters of the more than 90,000 homes sold in the Greater Toronto Area every year are listed by five brokerage s, Mr. Rook said. As home prices in the region have ballooned, so too have overall real estate commissions, which averaged $2.13-billion a year over the past two years.

TREB lawyer Donald Affleck argued that the board has a duty to protect personal information of consumers, such as the details of transactions that haven't been finalized, as well as historical home sales data, that could violate Canadian privacy laws. "The evidence makes it clear that the vast majority of home buyers and home sellers do not wish to have the sold prices of their homes available to anyone with access to the Internet," he said.

The Canadian Real Estate Association, which is taking part in the hearing, said there is scant evidence that offering homes sales data online increases competition in the real estate industry. Services such as the industry-run are popular among consumers even without providing historical sales data, CREA lawyer Sandra Forbes said.

But in restricting access to MLS information, TREB is trying to keep realtors, not consumers, at the centre of real estate transactions, Mr. Rook said. "God forbid that consumers actually have a voice, because knowledge is power and knowledge is money."

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