The long-awaited Competition Tribunal hearing, The Commissioner of Competition v. The Toronto Real Estate Board, will continue today after Chief Justice Paul Crampton dismissed TREB’s motion that he recuse himself from the proceedings.
TREB’s lawyers had requested he recuse himself from presiding over the case because of his participation in a similar lawsuit launched 13 years ago. TREB’s representatives said that could bias current proceedings.
Chief Justice Crampton was a partner in the business law firm Davies, Ward, Phillips and Vineberg LLP from 1992-2002. TREB’s motion for recusal pertains to contact he had in 2001 with RealtySellers, a company that formally sued TREB and CREA for anti-competitive practices the following year, settling in 2004.
TREB’s defense team said on Monday that it only recently discovered the chief justice’s involvement in the case and did not have sufficient time to scrutinize all relevant documents. Counsel for the Competition Bureau, John Rook, agreed to an adjournment until TREB’s lawyers could ascertain whether or not Chief Justice Crampton played a role significant enough to warrant recusal, citing potential for undermined justice in the event that developments supporting TREB’s claim emerge later.
“We need to look at it from two perspectives,” said Rook. “If it comes up at a later date it would undermine the administration of justice and would make the hearing (void). We need a fixed timetable.”
He added that future developments supporting TREB’s assertion could taint the other members of the hearing committee.
While Chief Justice Crampton recalled minimal involvement in the previous case, which he said concerned no more than a few phone conversations, TREB’s team spent the remainder of Monday performing due diligence. They argued their motion to have the chief justice recuse himself on Tuesday morning, but it was dismissed.
The Competition Bureau alleges TREB is limiting consumer choice and the ability of its member real estate agents to offer innovative Internet services, namely virtual office websites (VOWs), using all relevant MLS data.
While TREB was previously cleared of stymieing competition, the Competition Bureau successfully appealed the case on the grounds that the previous committee improperly defined section 79 of the Competition Act – the “abuse of dominance” provision.
Proceedings are now scheduled to continue all this week in Toronto.
Neil Sharma is a contributing writer for REM.
