On April 27, 2016, the Competition Tribunal (the “Tribunal”) ended the years-long dispute between the Competition Bureau (the “Bureau”) and the Toronto Real Estate Board (“TREB”) by ruling that certain of TREB’s practices are anticompetitive.
TREB — an association of real estate brokers — had adopted rules that barred brokers from disseminating detailed listing information online through the Multiple Listing Service but which allowed for the same information to be shared in person and by other means. The Tribunal held that this practice has had, is having, or is likely to have the effect of preventing competition substantially in a market, as contemplated by the Competition Act’s (the “Act”) abuse of dominance provisions.
The Bureau’s case was initially brought to the Tribunal in 2011 under the abuse of dominance section of the Act (section 79). However, the Tribunal dismissed the Bureau’s application because the Bureau could not establish that TREB had engaged in a practice of anticompetitive acts, whose purpose was an intended negative effect on a competitor. In that regard, the Tribunal held that because TREB was an association of brokers, it could not compete with any of the brokers belonging to the association and, by extension, its practices could not have a negative effect on a competitor.
The Bureau successfully appealed the Tribunal’s dismissal to the Federal Court of Appeal in 2014, and the case was sent back to the Tribunal for reconsideration in 2015. At this time, a public version of the Tribunal’s reasons are not yet available, although they are expected in the coming weeks. In addition, although the Tribunal has concluded that TREB’s conduct came within the ambit of section 79, remedies remain to be determined.