(Canva)

QUICK HITS

 

• The Ontario Superior Court of Justice dismissed a motion by Ojohome Canada Ltd. seeking to restore its access to MLS data feeds from TRREB and CREA. 
• The court found that the brokerage, which operated a referral-based business model, failed to meet the high legal threshold for a mandatory interlocutory injunction and did not demonstrate irreparable harm. 
• As a result, Ojohome remains without access to the majority of GTA listings while the broader dispute continues through regular legal proceedings.

 

In Ojohome Canada Ltd. v. The Canadian Real Estate Association, the Ontario Superior Court of Justice dismissed a motion brought by the plaintiff to regain access to live feed data from the Multiple Listing Services (MLS) provided by the Toronto Regional Real Estate Board (TRREB) and the Canadian Real Estate Association (CREA).

Under agreements with TRREB and CREA, the plaintiff obtained current data feeds from the Toronto Region from TRREB via the MLS data feed (known as the “IDX”) and the Canada-wide feed from CREA (known as the “DDF”), which in turn permitted interested homebuyers to conduct searches for properties on the plaintiff’s web site. 

 

Business model focused on referral revenue 

 

The plaintiff did not list or sell homes. Rather, the plaintiff’s website generated revenue by making referrals to a network of real estate agents and mortgage brokers. Agents paid the plaintiff a fee of 25 per cent of the agent’s commission upon a successful sale. No fee was charged if a sale did not occur. The plaintiff earned 80 per cent of its revenue from sales referrals and 20 per cent from mortgage referrals.

The dispute dated back to 2021 when the plaintiff was first denied access to the IDX.  Under TRREB’s rules, IDX data may only be used for the purpose of carrying on the business of “a bona fide trade in real estate in Ontario” for a consumer with whom the subscribing member has a “lawful broker-consumer relationship”. TRREB’s position was that the plaintiff’s business was not compliant with their IDX agreement because the plaintiff did not contribute data to the IDX but was only seeking to monetize the data it obtained via the IDX. 

 

TRREB alleges non-compliance 

 

TRREB’s evidence was that the plaintiff’s in-house counsel advised in 2021 that the plaintiff intended to become compliant with TRREB’s rules, but it never did so.

What happened instead, TRREB argued, was that the plaintiff improperly regained access to the IDX through subterfuge by using a different name and web address to subscribe while failing to advise staff at TRREB of the prior dispute.

In October 2024, TRREB terminated the plaintiff’s access to the IDX. In December 2024, CREA took steps to restrict the DDF feed to the plaintiff so as to exclude the TRREB data. This effectively reduced the listings on the plaintiff’s website from around 54,000 homes to 11,500 postings derived from other real estate boards outside of the Toronto region. The plaintiff was blocked from displaying data relating to most listings in the GTA.

 

Plaintiff seeks injunction

 

The plaintiff subsequently brought a motion against TRREB and CREA seeking an interlocutory injunction or mandatory order to restore its access to the MLS data feeds from TRREB and CREA until the dispute could be adjudicated. The plaintiff denied that its business was non-compliant with TRREB’s rules and disputed TRREB’s interpretation of TRREB’s by-laws and IDX agreement. The plaintiff denied any subterfuge and argued that its services provided value to consumers and sales agents. 

Court applies three-part injunction test

 

 The court evaluated the plaintiff’s request based on a three-part legal test requiring (1) demonstrating a serious or strongly convincing case; (2) proving irreparable harm without immediate relief; and (3) weighing the balance of convenience between parties.

The plaintiff argued that restoration of the IDX data feed was a simple low-cost matter which imposed little or no burden on TRREB in contrast to the damage being inflicted on its business, which was allegedly irreparable.

In response, TRREB argued that restoring access required the plaintiff to demonstrate a strong likelihood of success at trial, further arguing that the plaintiff had not met this threshold based on the clear wording of the applicable agreements and the fact that TRREB was not obligated to provide access to any data except on its own terms. TRREB’s position was that it needed to protect the integrity of the system for the benefit of all its members and participants in the IDX data feed program.

CREA took no position but indicated it would restore TRREB’s data if ordered by the court.

 

Motion judge finds no irreparable harm

 

The motion judge agreed with TRREB, finding the plaintiff did not sufficiently demonstrate a strong likelihood of success at trial. 

Further, the motion judge concluded that even if the lower threshold of showing only a genuine issue applied, then the plaintiff’s motion for an injunction failed on the second branch of the test requiring it to show irreparable harm.

To establish “irreparable harm,” the party seeking the injunction must clearly establish that damages awarded after a trial would not provide an appropriate remedy. If damages or some other trial remedy would come too late or be inadequate to repair the harm or be insufficient to do justice, then the harm may be said to be irreparable.

 

Damages deemed adequate; motion dismissed 

 

The plaintiff and TRREB each claimed irreparable harm to their reputation and business model. However, the motion judge was not satisfied that irreparable harm was established by either party. In the motion judge’s view, the parties were commercial entities engaged in a commercial contract dispute and damages appeared to be an adequate remedy for any breach thereof.

Furthermore, the motion judge noted that the plaintiff could take steps to mitigate its damages before trial and could take steps to come into compliance with the TRREB rules.

Lastly, the motion judge reasoned that even if restoring the IDX data feed would impose little burden on TRREB, that alone did not justify injunctive relief given the failure of the plaintiff to meet the other prongs of the test for injunctive relief.

The brokerage’s motion was dismissed and the proceedings will continue in the ordinary course. 

 

Editor’s note: James Cook is a regular contributor to REM. While he was not directly involved in this case, lawyers from his firm, Gardiner Roberts LLP—Kevin Fisher and Eli Bordman—acted for TRREB, as noted in the court decision.