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with their clients in person, by fax and by email on a fairly widespread basis, and that this
practice is at least tolerated by TREB. The Tribunal notes that TREB and CREA have referred to
some evidence to the contrary, but it is satisfied that the practice exists (Transcript, September
13, 2012, at pp. 638-641; Transcript, September 25, 2012, at pp. 1452-1455; Transcript, October
6, 2015, at pp. 750-751; Exhibits R-079 and CR-080, Expert Report of Dr. Jeffrey Church dated
July 27, 2012 at paras 15, 179 and 263; Exhibits IC-182 and CIC-183, Expert Report of Dr.
Fredrick Flyer dated June 2, 2015 at paras 10-11 and 14-17; 2015 Vistnes Reply Expert Report at
page 3, footnote 3; Exhibit IC-088, Expert Report of Dr. Fredrick Flyer dated August 13, 2012 at
para 25; and 2012 Vistnes Expert Report at paras 268-270).In addition, TREB tools such as
Toronto MLS Contacts & CMA (Exhibit A-004, Document 1348) and Appraisal for Superior
Sales and Listings (Exhibit A-004, Document 1345) teach TREB Members how to use sold and
other MLS data to create CMAs for actual and potential clients. In their testimony, Messrs.
Richardson and Syrianos confirmed that CMAs containing sold information can and are provided
by TREB’s Members to their clients, provided that the appropriate consent has been obtained. As
to the second change, one is left to speculate as to what specifically it was intended to address.
[365] TREB notes that the press release that it issued on June 24, 2011 to launch a 60-day
consultation process with its Members stated that its new VOW policy gave “due consideration
to TREB’s legal responsibility to ensure the protection of consumer data” and that TREB “took
great sensitivity and care” in balancing this consideration with its desire to avoid “restricting
Members’ ability to provide the highest level of service to their customers.” However, this does
not appear to be borne out by the minutes of the meetings discussed above, or by TREB’s prior
history with the VOW issue, dating back to 2003. There is also no mention of privacy concerns
or PIPEDA in the minutes of the meeting of TREB’s Board of Directors dated August 25, 2011,
following the expiry of the 60-day consultation period with TREB’s Members. Those minutes
simply reflect that, after legal counsel “entertained [a] round table Q&A regarding TREB’s
VOW Policy and Rules,” TREB’s Board of Directors approved the final VOW Policy and Rules
and commenced the process of developing the technological infrastructure to implement the
VOW Data Feed, which ultimately was launched on November 15, 2011.
[366] Indeed, in a report entitled “MLS Focus Group Report,” dated June 27, 2011, which was
considered by TREB’s MLS Committee at its meeting of September 13, 2011, it was noted that
rulings from the Privacy Commissioner and from RECO were still needed in respect of VOWs
(Exhibit CA-003, Document 1304, at p. 6). Mr. Richardson confirmed that such a ruling from
RECO was never sought or obtained. Mr. Richardson also confirmed that TREB’s VOW Task
Force did not obtain any additional information about the PIPEDA or RECO, even though the
minutes of the May 12, 2011 meeting stated that the task force “felt some additional legal
research would be appropriate on both PIPEDA and RECO requirements” (Transcript,
September 27, 2012, at pp. 1667-1668). There is no evidence on the record to suggest that such a
ruling from the Privacy Commissioner was ever sought or obtained. Nevertheless, TREB argued
that the decision to exclude the Disputed Data from the VOW Data Feed was “prudent given the
requirements of PIPEDA, and in particular given the 2009 decision from the Office of the
Privacy Commissioner, which was known to and considered by the Task Force in its
deliberations” (TREB’s 2015 Closing Submissions, at para 239).