CREA and Realtysellers Real Estate have both been granted leave to intervene in the Competition Tribunal proceedings between the Competition Bureau and the Toronto Real Estate Board (TREB).
Earlier this year, Commissioner of Competition Melanie Aitken filed an application alleging that TREB’s MLS restrictions and its proposed virtual office website (VOW) policies are anti-competitive.
Madam Justice Sandra J. Simpson ruled that both CREA and Realtysellers bring unique perspectives to the case, but both will be limited to addressing specific topics.
Lawrence Dale, president of Realtysellers, told REM: “The tribunal recognized that Realtysellers is the leading brokerage in this area and has a distinct perspective in these matters. We were granted intervention on essentially the terms we requested. This issue affects us and the tribunal acknowledged we were entitled to a seat at the table.”
Justice Simpson wrote in her ruling: “In my view, although it is a new company which, for the moment, operates on the ‘sell’ side of the business of operating a real estate brokerage, RS (Realtysellers) has a distinct perspective and is directly affected by TREB’s MLS Restrictions, including the Proposed VOW Rules…RS is the only broker which has indicated to the Tribunal that is has such plans.
TREB had opposed the Realtysellers application for leave to intervene.
The court ruled that “the Tribunal will hear evidence about RS’s view of how it will operate a virtual office over the current Internet and of the difficulties caused by the MLS Restrictions.”
The court rejected Realtysellers’ request to address privacy issues, stating that “this is the one topic proposed by RS on which it does not bring a unique perspective.”
“There is a further caveat,” wrote Justice Simpson. “Because of the lengthy litigation history and the current lawsuits between RS’ senior executives and TREB in which damages totaling more than half a billion dollars are claimed, counsel for RS undertook not to call Lawrence Dale as a witness on the RS topics. In my view, testimony from Fraser Beach should also be excluded and I have decided that he is also prohibited from testifying on the RS topics.”
Beach was at the centre of a previous court battle between TREB and Realtysellers, when the broker was denied access to the MLS system for making MLS information available to a third party.
Although Dale and Fraser will not testify as part of the Realtysellers topics, the Competition Bureau may call both of them to testify at the hearing.
CREA may address the development, use and competitive impact of Internet data-sharing vehicles in Canada other than VOWs. It can discuss the appropriate terms of use, policies and rules that would be in place for these vehicles; and it may talk about the impact of the proposed remedies on CREA and its members, including on the MLS and Realtor trademarks.
The court ruled that CREA will not be allowed to discuss VOWs because the case is specifically about TREB’s proposed VOW policy. CREA was also turned down in its request to address the “appropriate definition of the market and geographic markets”.
CREA had also asked that it be allowed to intervene on the basis that it will not be liable for costs and will not seek costs, but that request was refused. Justice Simpson wrote, “While I have no doubt that CREA will behave responsibly and abide by the terms on which its intervention has been allowed, I do not want to fetter the discretion of the panel hearing this matter to make an adverse cost award should unforeseen circumstances develop.”
The hearing is not expected to start for several months. It will take place in Toronto.
