Day six of the Competition Tribunal hearing between the Commissioner of Competition and the Toronto Real Estate Board (TREB) continued in Ottawa Tuesday with former TREB CEO Don Richardson resuming his place on the stand to face intense cross-examination from Competition Bureau counsel John Rook.

Much of the early part of the exchange involved going through TREB’s bylaws and various standard forms used by TREB members, and discussing when some changes were made to those documents. Particular attention was paid to clauses that spoke about virtual office websites (VOWs), data feeds and listing agreements.

One point of interest occurred later in the morning when Richardson, under questioning by Rook, confirmed that TREB members accessing the Stratus system could, at the press of a button, easily email detailed property search results containing information such as list price, sold price and days on the market to a consumer.

Richardson added that it was a judgement call by the member to decide if the consumer should receive the search results based on whether it matched the reasons for which it was conducted, which he earlier testified was based on whether it or not it related to the trade, or potential trade, of real estate.

Rook then had Richardson confirm that there was nothing in the search parameters that imposed any limitations, and also pointed out that those results could then be printed by whoever had received them.

Richardson also confirmed that TREB has never disciplined any of its members for emailing sold and related detailed information to customers, and that the CMA process operated in a similar fashion.

“So, not to put too fine a point on it, but just so the record is clear, members can, and do, send this information by email over the Internet but are not allowed to display it on a VOW, correct?” asked Rook.

“This is correct,” replied Richardson.

Rook then outlined how the MLS Data Information Form is used to capture the relevant property information to be entered into the MLS system, and showed that the seller has the opportunity to determine to what extent they want their personal information distributed over the Internet, including whether it can be displayed over a VOW.

Later in afternoon, all three tribunal panel members asked questions of Richardson, with Chief Justice Paul Crampton wondering why the Municipal Property Assessment Corporation (MPAC) system and Teranet, Ontario’s exclusive provider of online property search and registration data, which includes information sales data and transfer transaction records across the province, don’t seem to have the same privacy concerns as TREB over the posting of this information.

“I’m just trying to get a sense of how we got here,” said Crampton. “At some point the privacy issue seems to go away for MPAC and Teranet, and as you testified, they will make some of the same information available for a price.”

Richardson responded that he was unable to answer that question on their behalf and that the panel would have to review MPAC’s and Teranet’s Terms of Use information.

Crampton then asked Richardson what was preventing him, as a consumer, from taking the property information he gets from a member Realtor who emailed him the information with a “click of a button”, and redistributing it to a relative or someone else he knows. Richardson replied that TREB had its own Terms of Use posted on the website.

“But, if I am getting this (information) from an email, I’m presumably not going to a website to read the Terms of Use, correct?”

Panel member Dr. Wiktor Askanas then added, “So you have a policy you created about terms of use and no way to police it,” to which Richardson responded that TREB was doing the best it could with the resources it has.

Askanas also asked how many complaints had been filed about the VOWs, with Richardson replying that he was aware of about “20, 30 or 40 in a fairly short amount of time.”

Justice Denis Gascon asked if most of the complaints about the VOWS came from brokers or consumers, with Richardson confirming that most came from brokers or other VOW operators.

“TREB receives very few complaints from consumers about privacy issues,” said Richardson, adding that he’d be willing to bet only about two complaints a year came from members of the public about privacy issues.

TREB counsel David Vaillancourt then called Evan Sage, vice president and sales rep with Sage Realty in Toronto. Sage discussed the innovative ways his firm is using technology to gain the most amount of exposure for their listings, including the use of unique websites and professional photography for each listing; social media tools such as Facebook to help drive traffic to the websites, including having clients use their own social media networks to advertise their property; and analytics software on the back-end of each website that captures where the web traffic is coming, such as whether it was as the result of a flyer campaign, Facebook or realtor.ca.

Sage also indicated that his firm is looking at turning the Sage website into a portal consumers can visit to view listings, not just in the Toronto area, but across the country. The purpose, he said, was to be innovative and help generate sales leads.

“The Internet has been a game changer for our industry and we’ve certainly taken a hold of that,” said Sage.

Under cross-examination by Competition Bureau lawyer Emrys Davis, Sage was shown a screen capture of a listing from his website. Particular attention was drawn to an “Ask a Question” button which, after the consumer entered their contact information, gave the option to have an agent to contact them for “complimentary buyer’s services and seller home valuations.”

“You’re not charging anyone for the complimentary service, are you?” asked Davis.

“No, we do it for lead generation,” replied Sage, also confirming that his company is hoping the lead becomes a client.

“And that home evaluation would contain information like comparable properties and prices?” asked Davis.

“Yes,” replied Sage.

Davis also spent time addressing an April 23, 2015 blog post by Sage agent Melanie Piche titled The Future of the Real Estate Industry (and Why You Should Care). 

As an example, Davis drew attention to “Prediction #1: Shifting Consumer Needs Change the Role of the Agent”, which reads, in part, “As consumers continue to become more informed via online research, we’re seeing a huge shift in what Buyers and Sellers expect from their real estate agent. We’re no longer going to be Gatekeepers of Information” and “The Canadian real estate industry has a well-deserved reputation for hoarding data. Over the last few years, we’ve seen several court challenges as consumers attempt to get freer access to real estate data – specifically sold prices. While the industry claims to want to ‘protect the public’s privacy’ (and there are some good arguments for this), a lot of people (myself included) believe that the quest to keep sold prices private has just as much to do with protecting real estate agent jobs.”

Tim Syrianos, broker of record and owner of Re/Max Ultimate, who has also served as a director with TREB for the last four years, was called as a witness for TREB. He confirmed his brokerage is technology-driven, operating four different websites to attract different types of consumers. It is “80 to 85 per cent paperless” and also offers two different web applications – one which uses the TREB IDX feed and the other a VOW feed.

Syrianos said he feels that providing “more services, technology and features to Realtors is the way to go.” He said, “Some people opt to recruit other agents with the phone. I want to provide (agents) with the best tools in the marketplace. When you become an administrative arm to them, they can focus on their business,” adding that the technology also benefits the consumer.

Syrianos went through a similar cross-examination by Competition Bureau lawyer Emrys Davis, who stepped through how a consumer could get a free home evaluation report from a Re/Max Ultimate agent that would ultimately include sold information, including pending sales prices where the conditions have been met, released or waived.

“And the pending sales prices are the most recent sales and particularly relevant to me as a prospective seller, correct?” asked Davis, with Syrianos agreeing they were.

Davis continued. “And when the information is provided to me as a prospective seller, the agent is not limiting their pool of listings in any way, correct?” with Syrianos confirming that was true.

Using the example of a client losing a bidding war, a common occurrence in Toronto’s current market environment, Davis had Syrianos confirm that the final selling price could later be obtained from the consumer’s agent.

“Yes, because that information is a benchmark,” said Syrianos.

“So, it’s relevant information for me as a potential home buyer?” asked Davis, to which Syrianos confirmed it was.

Vaillancourt called Dr. Jeffrey Church as TREB’s final witness for the day. Church, an economist with specializations and interests in competition policy, authored his own report for TREB challenging Dr. Gregory Vistnes’ report, which Vistnes reviewed in part as a Competition Bureau witness at the hearing on Monday.

Church spent over an hour addressing intricate economic issues and formulas while attempting to cast doubt on the validity of Vistnes’ report and assessments.

In the end, Church’s assessment was that Vistnes had not established TREB as dominant in the relevant market. His opinion is also that TREB’s VOW policy is not anti-competitive, nor does it facilitate buyer steering.

Church closed his testimony by saying that he believes there are legitimate justifications that underlie TREB’s VOW policy and that its purpose is not anti-competitive.

Church is expected to face cross-examination when the hearing resumes Wednesday morning.