The Competition Bureau’s case against the Toronto Real Estate Board (TREB) is going back to the Competition Tribunal, the Federal Court of Appeal has ruled. It allowed an appeal of an April 2013 decision that dismissed the bureau’s complaint against TREB.
“The application was based on the commissioner’s allegation that a certain rule adopted by the board is anti-competitive because it substantially lessons competition among Realtors in the Greater Toronto Area who are members of the board,” says the court’s Reasons for Judgment, written by Justice J. A. Sharlow. “The tribunal dismissed the application without considering the merits,” on the basis that subsection 79(1) of the Competition Act doesn’t apply to the board because it does not compete with its members.
The appeal court says the tribunal erred in its interpretation of the law. “I would allow the appeal and refer the commissioner’s application back to the tribunal for determination on the merits,” wrote Justice Sharlow.
The board “disputes many factual and legal aspects of the commissioner’s application, but the tribunal did not resolve any of those disputes because it dismissed the application solely on a question of law,” says the ruling.
The Competition Bureau originally filed its case in 2011 and it was heard in late 2012. The decision was released in April 2013.
The bureau’s application before the tribunal requested that TREB eliminate rules that it claimed “denied real estate agents the ability to introduce innovative Internet-based real estate brokerage services, such as Virtual Office Websites (VOWs).”
Although ruling that the bureau failed to make its case under one section of the Competition Act, the tribunal’s April decision stated in “an observation” that another section of the act “might give the commissioner a means to apply to the tribunal.”
Lawrence Dale, who was president of RealtySellers Real Estate at the time of the application and was granted intervenor status at the tribunal, said of the April decision: “This was a classic case of a legal technicality where nothing gets resolved…Once these technicalities are addressed, the fundamental issues still remain to be determined. How long that takes to get resolved is anyone’s guess.”
Now that the case is going back to the tribunal again, the case has inched one step closer to a final resolution.
