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Summary of Toronto Real Estate Board v. Commissioner of Competition, 2017 FCA 236

Ottawa, December 1, 2017 – A judgment was issued today by the Federal Court of Appeal (Nadon, Near and Rennie JJ.A.) in file A-174-16:

Toronto Real Estate Board v. Commissioner of Competition, 2017 FCA 236

Summary: The Toronto Real Estate Board (TREB) operates an online database of information on current and previous property listings in the Greater Toronto Area (GTA). It makes some of this information available to its members via an electronic data feed, which its members can use to populate their websites. However, data related to sales, pending sales, withdrawn, expired, suspended or terminated listings as well as data related to offers of commission are not distributed via the data feed. TREB implemented restrictions on the access to and use and display of such data on virtual office websites (VOWs), broker websites allowing clients to log in and view information. The Commissioner of Competition applied to the Competition Tribunal under subsection 79(1) of the Competition Act, for an order prohibiting TREB from imposing such restrictions on the disputed data, alleging that TREB’s policies excluded, prevented, or impeded the emergence of innovative business models and service offerings in respect of the supply of residential real estate brokerage services in the GTA. The Tribunal granted the order in part and held that TREB’s information sharing practices prevented competition substantially in the supply of residential real estate brokerage services in the GTA. TREB appealed the Tribunal’s decision to this Court. The appeal was dismissed with costs.

Leave of the Court is statutorily required in order to challenge the Tribunal’s findings of fact. No such leave was sought and consequently the Court cannot interfere with those findings even where TREB alleges that those findings are based on speculative evidence. Only the Tribunal’s decisions on questions of law and questions of mixed fact and law were subject to the appeal.

TREB made no substantive challenge to the Tribunal’s finding that it controlled the relevant market. The Tribunal made no error in finding that TREB engaged in an anti-competitive practice and that this practice had and will likely continue to have the effect of preventing or lessening competition substantially in the GTA sufficient to meet the requirements in subsection 79(1). In doing so, the Tribunal correctly understood the nature of the test it had to apply. The Tribunal made findings of fact based on the expert and lay evidence before it. Given those findings, there is no basis to interfere with the Tribunal’s determination.

Quantitative evidence is not required to demonstrate an anti-competitive effect. Accordingly, the Tribunal did not err in failing to require the Commissioner to bring forward such evidence to assess the impact of the VOW restrictions on competition, or in refusing to draw an adverse inference from the Commissioner’s failure to conduct an empirical assessment. It is for the Commissioner to decide how to bring his case.

The Tribunal’s conclusions to the effect that TREB could not rely on privacy concerns or copyright protection to justify its practice are upheld.

A copy of the decision can be obtained via the website of the Federal Court of Appeal: https://decisions.fca-caf.gc.ca/fca-caf/en/0/ann.do

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Date Modified: 2017-12-01