On May 14, 2013, the Competition Bureau launched an appeal of the Competition Tribunal’s April 16, 2013 decision in the Toronto Real Estate Board matter.

A summary and analysis of the matter and the Tribunal’s decision is available in our prior update Commissioner Dealt Setback in TREB. Among other things, we concluded that the Tribunal’s decision effectively reads associations out of the abuse of dominance provisions of the Competition Act.

It appears that the Competition Bureau came to a similar conclusion. In announcing the appeal, the Commissioner of Competition stated that the Tribunal’s ruling is based on an "overly narrow interpretation" of the abuse of dominance provision and that allowing the Tribunal’s decision to stand could leave a "significant loophole" in the application of the Act to trade associations. He further stated that "while most trade associations comply with the Competition Act, we are concerned that, if the Tribunal’s decision is left to stand, trade associations may be tempted to develop rules aimed at preventing or eliminating potential new forms of competition."

The appeal will be heard by the Federal Court of Appeal. We will provide a further update following the appeal decision (which is likely many months away).