Legal counsel for the Toronto Real Estate Board recently wrote that the Supreme Court of Canada’s decision to not hear TREB’s appeal “leaves open many legal questions”, particularly regarding consumer privacy.
I would like to set the record straight.
The truth is that the Supreme Court’s decision has brought this case firmly to a close. After a costly seven-year legal battle, the privacy arguments TREB raised to defend its anticompetitive data restrictions have been dealt with exhaustively by the courts.
In 2016, the Competition Tribunal ruled that TREB’s privacy arguments were a “pretext” and an “afterthought” used to justify its anticompetitive restrictions. The tribunal also found that TREB already had sufficient consent from home buyers and sellers to display the relevant data, including historical listings and sale prices, through virtual office websites.
After all, Realtors in the GTA freely share the same information with their clients in a variety of other ways many times each day.
TREB then took the case to the Federal Court of Appeal, raising the same privacy arguments that were shot down by the tribunal.
In 2017, the court cited “compelling” evidence that TREB’s intent was to limit competition, not to protect privacy. Like the tribunal, the court analyzed the historical consents that TREB had secured from previous buyers and sellers. And like the tribunal, the court rejected TREB’s argument that it did not have sufficient consent from clients to share sales data through websites.
The Supreme Court’s decision to not hear TREB’s second appeal does not mean that there are unanswered questions. Instead, it means that the decisions of both the Competition Tribunal and the Federal Court of Appeal are final. TREB’s privacy arguments related to the case have had their day in court, and the courts have spoken.
With TREB’s restrictions struck down, Realtors in the GTA are now free to offer home buyers and sellers insights into sales prices – such as innovative tools that provide information on local trends – with the added convenience of online access.
Since the Supreme Court’s decision, the Competition Bureau has had many encouraging conversations with other real estate boards across Canada. We are hearing that many of their members, like many members of TREB, welcome this decision and are keen to embrace the opportunities the internet offers to better serve their clients.
We all want the same thing: for Canadians to have access to the best and most innovative real estate services possible.
For TREB, and for real estate boards across Canada, the message from the courts is loud and clear: this matter is settled. It’s time to move forward, embrace policies that align with the law and open the door to innovation in real estate services.
Matthew Boswell was appointed interim commissioner of competition for up to one year beginning May 31, 2018. He joined the Competition Bureau in 2011 and became a senior deputy commissioner in 2012. He has led numerous merger reviews and directed major investigations targeting criminal cartels, abuse of dominance and deceptive marketing practices. Prior to joining the bureau, he prosecuted securities fraud as a senior litigation counsel at the Ontario Securities Commission and prosecuted all types of criminal offences as an assistant Crown attorney in Toronto.
