The Canadian Real Estate Association (CREA) is weighing in for the fight between the Competition Bureau and the Toronto Real Estate Board (TREB).

CREA has requested leave to intervene in the upcoming hearings before the Competition Tribunal, stating: “The Tribunal’s decision in this proceeding will have national implications for the real estate industry and therefore will directly affect all of CREA’s members.”

It says that although what the bureau is seeking is “broad and imprecise, any finding made, or order issued, in respect of VOWs (virtual office websites) and other Internet vehicles will directly affect the ability and manner in which CREA’s members across Canada can and will provide services to their customers using the Internet.”

Update: Realtysellers Real Estate of Toronto, which recently partnered with PropertyGuys.com, is also seeking leave to intervene.  The full story is here, and the documents are available at the link below. 

CREA says it will be supporting TREB in the proceedings “from its different perspective as the national representative of the Canadian real estate industry.”

Gary Simonsen

An affidavit filed by Gary Simonsen, CREA’s CEO, outlines a detailed history of CREA and the evolution of placing real estate listings on the Internet in Canada. It notes that the Competition Bureau and CREA’s VOW Task Force members met several times from 2008 to 2010, but failed to agree on a national VOW policy. CREA now does not have a mandatory rule governing the use of VOWs. It says a number of boards and associations across the country are considering implementing a VOW policy, but the Competition Bureau’s application “has created confusion and uncertainty in the industry, which CREA believes will delay the development of such policies” until the dispute is resolved.

Simonsen’s affidavit says the Competition Bureau wants “to allow brokers to use the information from boards/associations’ MLS Systems to provide services over the Internet (including, but not restricted to VOWs), without any restrictions, including any restrictions which might be mandated by provincial or other federal regulation.” It also says the bureau is requesting that the Tribunal “direct” TREB to “‘implement’ resources and facilities that are necessary to ensure the operations of VOWs or ‘similar services’.”

Simonsen says it’s important that CREA be allowed to tell the Tribunal how the Competition Bureau’s demands would impact the industry as a whole, “considering the different provincial regimes across Canada and the different demand for and experience with VOWs and similar services…”
CREA says that as the trademark owner for the MLS and Realtor, it has a direct interest in “ensuring that any use on the Internet of information sourced from a MLS System is subject to sufficient rules and policies that protect those standards.”

The affidavit says that the Competition Bureau’s application “raises the issue of the competitive effect of VOWs in comparison to services provided in the traditional bricks and mortar context. The Commissioner assumes that a VOW should be viewed as a ‘stand alone’ operation that is and can be used to the exclusion of broker services provided through ‘bricks and mortar’ operations. This is not the appropriate way in which to characterize VOWS, which exist as a complement to traditional broker services.”

Simonsen says CREA also “disagrees with the Commissioner’s statements concerning benefits that will result from the use of VOWs and wishes to respond on both the price and non-price effects of VOWs, as well as similar services…”

CREA is asking that it be allowed to review any discovery transcripts in the hearing, “but not to participate directly in the discovery process or be subject to documentary or oral discovery by any party.” It seeks the right to introduce evidence and to cross-examine witnesses at the hearing, promising not to repeat the cross-examinations of other parties. CREA is also asking to be allowed to make arguments at the hearing and any pre-hearing motions, case conferences or scheduling conferences.

The Competition Bureau is soon expected to file a rebuttal to TREB’s response to the application, and it is also expected to file a response to CREA’s leave to intervene. To read all of the case documents, click here.

CREA’s DDF Proposal

In its summary of CREA’s efforts to promote the use of technology and Internet access, the affidavit also outlines its data distribution facility (DDF) proposal that will be the subject of the association’s Special General Meeting Oct. 25 in Toronto.

“CREA’s DDF proposal, developed after research and consultation with the industry, is intended to supply publicly available MLS listing content for publication on both member and non-member (i.e., third party) websites. It is a permission-based system that will allow brokers to share their listings with other brokers, as well as to send their listings to third party websites. The DDF consists of three modules and at each stage, brokers will be able to decide if they wish to share listing content for display on other brokers’ websites, display the listing content of other participating brokers on their own website, and/or send their listing content for display on third party sites.

“The rules and policies relating to DDF that boards/associations will be required to follow are in the process of being finalized and it is expected that the DDF will be available before the end of this year.”