December 6, 2016
TREB and Competition Bureau Back in Court Over Sold Data
The debate of innovation versus privacy protection rages on as the Toronto Real Estate Board and the Competition Bureau of Canada head back to Federal Appeals Court this week.
At the heart of the dispute is the public sharing of Multiple Listing Service data on sold real estate prices and agent commissions in Toronto. Currently, this data is kept private by TREB, and shared only to its member agents, who in turn can only share it directly with their own buyer and seller clients. The Competition Bureau posits that hoarding this data not only puts the real estate board at a competitive business advantage over online-only brokerages (referred to as virtual online websites, or VOWs), but that it prevents innovative new ways to use it, such as new tools and analysis.
TREB argues that due to privacy laws in Canada, releasing the data without the direct consent of buyers and sellers would be a breach of their privacy, and that the implications would irreparably harm its business.
An Ongoing Argument
While the two entities have squabbled over the sharing of sold data for years, the situation came to a head when the Competition Tribunal ruled in favour of the Bureau last April, finding TREB’s practices to be anti-competitive and ordering them to pay $1.8 million to the Commissioner of Competition. However, this order was stayed in August when Justice Mary J. L Gleason reviewed the case and found TREB had “raised at least one serious issue with respect to the possibility that the Tribunal’s order failed to take adequate consideration of property owners’ rights.”
“When analysing the privacy issue, the tribunal focused largely on whether TREB’s motivation for raising property owners’ privacy rights stemmed from a legitimate concern about those rights, or was tainted by an improper desire to maintain the dominant position of the majority of its members, who do not rely on web-based services,” she said.
One of TREB’s main arguments in the appeal is that by not considering privacy issues, the Tribunal was wrong in its ruling.
For and Against the Sharing of Data
The real estate industry is divided on whether the data should be shared. While only the Toronto Real Estate Board is currently embroiled in legalities, the outcome could change the landscape for real estate boards across Canada, at every level of government. The Canadian Real Estate Association, which is acting as an intervener in the case, has argued that sharing the data would damage the organization’s reputation and trademark.
VOWs (including Zoocasa when it was under its previous ownership with Rogers), have shared the sold data in the past, but were ordered to stop by TREB before the issue ended up in court. However, VOWs argue that access to the data is a crucial way for them to differentiate themselves from traditional brokerages, and that it could be used to create intuitive tools and services to better help buyers and sellers.
It was an issue that Zoocasa Realty Broker of Record Lauren Haw touched on while speaking on a real estate panel at the Canadian Personal Finance Conference. “We think there’s nothing wrong with sharing the information,” she said. “We’d be able to make some amazing calculators and neighbourhood guides… The more informed our clients are, the easier it is for us to do our jobs. They’re better negotiators and we can help them make better decisions.”
Whether TREB’s appeal will favour the sharing of data remains to be seen – be sure to check back for updates!