On April 28, 2016, the Competition Tribunal (Tribunal) announced that it had partially granted the Commissioner of Competition’s (Commissioner) abuse of dominance application against the Toronto Real Estate Board (TREB). The remedy will be determined following a separate hearing. In order to protect confidential information, the reasons for the decision will not be released until a public version is available. We will issue a further update at that time.
The Tribunal found that TREB’s restrictions on the multiple listing service (MLS) information its real estate agent members are allowed to post on the internet constituted abuse of dominance. The Tribunal agreed with the Commissioner’s position that these restrictions substantially reduce the degree of non-price competition in the supply of residential real estate brokerage services in the GTA. The Tribunal concluded that TREB’s rules had a considerable adverse impact on innovation, quality and the range of residential real estate brokerage services.
The Tribunal first decided this case in 2013, finding that TREB, as a trade association, could not be subject to an abuse of dominance order because it does not compete with its members (relying on the Federal Court of Appeal’s (FCA) decision in Canada Pipe). The Commissioner appealed the Tribunal’s decision to the FCA, which found that the Tribunal misinterpreted Canada Pipe and sent the case back to the Tribunal for redetermination.