1
I.
Executive summary
[1]
The Commissioner of Competition (the “Commissioner”) has filed an application
pursuant to section 79 of the Competition Act, RSC 1985, c C-34, as amended (the “Act”), for an
order prohibiting the Toronto Real Estate Board (“TREB”) from engaging in certain anti-
competitive acts in connection with the supply of residential real estate brokerage services in the
Greater Toronto Area (“GTA”).
[2]
In brief, the Commissioner contends that, by restricting access to certain Multiple Listing
Service (“MLS”) information on the password-protected virtual office websites (“VOW”) of its
real estate brokers and salesperson members (the “Members”), and by restricting the manner in
which its Members may display and use that information, TREB’s conduct constitutes an abuse
of dominant position under section 79. The Commissioner asks the Tribunal to remedy TREB’s
alleged substantial prevention of competition in two general ways: First, by prohibiting TREB
from enforcing its current restrictions on the display and use of MLS data, and second, by
requiring TREB to include certain data in an electronic data feed to its Members who use it for
display on their password-protected VOWs. TREB responds that it opted to exclude the disputed
information from its VOW data feed after careful consideration of privacy and copyright issues,
and that its VOW policy does not substantially lessen or prevent competition. Among other
things, it maintains that any incremental impact that its VOW policy may have on competition is
not substantial.
[3]
For the reasons that follow, the Tribunal has decided to partially grant the application
brought by the Commissioner. The terms of the Tribunal’s order (the “Order”) will primarily
address certain restrictive aspects of the rules and policy that TREB has adopted with respect to
VOWs, which are defined below as the VOW Restrictions. The specific terms of the Order will
be determined after the parties have provided written submissions addressing this issue of
remedy and have had an opportunity to make oral submissions. A Direction to that effect will be
issued by the Tribunal shortly following the issuance of these reasons.
[4]
In the course of reaching its decision, the Tribunal determined that the Commissioner has
established, on a balance of probabilities, that the three elements of section 79 have been
satisfied. The Tribunal first concluded that TREB substantially or completely controls the supply
of MLS-based residential real estate brokerage services in the GTA, within the meaning of
paragraph 79(1)(a) of the Act. The Tribunal then found that TREB has engaged in, and continues
to engage in, a practice of anti-competitive acts, as contemplated by paragraph 79(1)(b). In
essence, that practice is comprised of the enactment and maintenance of the VOW Restrictions.
In addition, the Tribunal concluded that the VOW Restrictions have had, are having and are
likely to have the effect of preventing competition substantially in a market, as contemplated by
paragraph 79(1)(c). The Tribunal reached that conclusion after finding, among other things, that
the VOW Restrictions have substantially reduced the degree of non-price competition in the
supply of MLS-based residential real estate brokerage services in the GTA, relative to the degree
that would likely exist in the absence of those restrictions. Most importantly, this includes a
considerable adverse impact on innovation, quality and the range of residential real estate