Lawrence Dale

Competition Tribunal Chair, Federal Court Judge Sandra Simpson has turned down Lawrence Dale’s request for intervenor status in the tribunal’s hearing in the Commissioner of Competition v. CREA case. Instead, the co-founder of the former Realtysellers discount brokerage is expected to be a witness at the proceedings. The judge granted intervenor status to the other applicant, Stephen Skelly, vice-president of operations for the National FSBO Network, to submit an affidavit for cross-examination by both parties to the hearing.

In her reasons and order to deny Dale intervenor status, Judge Simpson wrote, “The material filed by Mr. Dale does not satisfy the tribunal that he has unique or distinct perspective that will assist the tribunal to decide this case. He merely says that he has a different interest in and perspective on the case because he is a businessman in the private sector and the commissioner is a public servant with a focus on the public interest. This bald statement is not sufficient…Mr. Dale also acknowledges that he is generally supportive of the commissioner’s case and provides no examples of topics on which their positions differ…

“In any event, the tribunal will have the benefit of Mr. Dale’s evidence. During oral argument, counsel for Mr. Dale and counsel for the commissioner indicated that the commissioner will be calling Mr. Dale as a witness,” wrote Judge Simpson.

In a statement to REM, Dale said, “While it was not what I ideally wanted, I did achieve the most important aspects of what we were seeking, to ensure that I will be able to tell the tribunal exactly what CREA did to us and that I am able to provide input on the remedy or sentence to be imposed against CREA.”

Skelly told REM he is pleased that his National FSBO Network (NFN) will be able to submit an affidavit about the contrasts between the FSBO market and CREA’s MLS system.  “We’re very happy because we thought this ought to be on the record – that the tribunal should know that there are alternatives now,” says Skelly.  “The commissioner had not included anything to that effect, with statements suggesting there was no alternative to the MLS. We felt there was an alternative and it should be out there.”

In the judge’s reasons and order allowing the NFN to have intervenor status, she wrote, “It is the tribunal’s view that evidence about the NFN’s operations could have a bearing on the question of whether there has been an impact on competition…The tribunal has also concluded that, as a competitor of CREA, the NFN will be directly affected by any order made about the operation of CREA’s MLS service…..Finally, the tribunal is satisfied that the NFN does have a unique perspective which the commissioner has not addressed.”

Although a competitor of FSBO organizations, CREA had supported the NFN application and opposed the Dale motion.

The hearing is scheduled for the week of April 25, 2011.