On October 24, 2010, members of the Canadian Real Estate
Association ("CREA") ratified a consent agreement between
the CREA and the Commissioner of Competition. After years of
scrutiny and several months of negotiations, the consent agreement
resolved the Commissioner's concerns that rules imposed by CREA
on real estate agents who list residential properties on REALTOR.ca
(formerly mls.ca, and when in use by a CREA member board an
MLS® System) were anti‐competitive.
Although clearly stated in the consent agreement that "CREA
does not accept the allegations of the Commissioner", the
agreement imposes certain obligations on CREA that specifically
address its rule making authority. Pursuant to the consent
agreement, CREA can no longer establish rules that deny the ability
of its members to provide sellers with listings‐only
services, or that discriminate against members because they offer
or wish to offer listing‐only services, including, but
not limited to, any rule that:
a) prevents its members from offering a listing‐only
service on a CREA member board's MLS® System or from
posting only a listing on a CREA member board's MLS®
b) discriminates against listings‐only services on a
CREA member board's MLS® System, (provided that the bare
identification of just a listing on a CREA member board's
MLS® System is not discriminatory);
c) prevents its members from cooperating with other members that
offer listings‐only services on a CREA member board
d) prevents its members from:
listing a seller's contact information in the
REALTOR®‐only remarks section of the MLS® System,
with instructions directing interested members to contact the
including, in the General Description section on the REALTOR.ca
website or any other website operated by CREA or a CREA member
board ("Approved Website"), a direction to visit either
the REALTOR®'s or his or her brokerage's website
(whichever site is included as the contact link in the
REALTOR®'s contact information on the Approved Website) for
additional information about the listing (without detailing the
nature of such additional information), or
displaying the seller's contact information on a website
other than an Approved Website;
e) prevents its members from negotiating and contracting with a
seller, in respect of the terms of payment for compensation to the
co‐operating members for the cooperative selling of the
property, as long as the offered compensation is not zero; or
f) conditions use of, or access to, the MLS® trademarks or a
CREA member board's MLS® System on a member, or a
prospective member, not offering listings‐only
In addition, CREA must send a written notice to all of its
member boards requiring that they change their rules accordingly.
CREA must also not license or continue to license the MLS®
trademarks to any member board that has failed to amend its rules
or adopts and/or enforces rules that are inconsistent with the
terms of the consent agreement. The nature of any additional
services to be provided by the listing REALTOR®/brokerage to
the seller is determined by agreement between the listing
REALTOR®/brokerage and the seller. As a result, homeowners
ability to choose which services they require from a real estate
agent when selling their home and pay only for those services is
protected by the agreement.
While the consent agreement is anticipated to have an impact on
the real estate industry in Canada, it also raises broader issues
with respect to access to widely used technology platforms and
networks which may be protected by intellectual property, to the
extent that there are exclusionary rules in place. While the
Competition Bureau has previously sought to pry open exclusive
networks (such as those run by Interac in the 1990's), the CREA
case may signal a renewed interest in opening up access to
"essential facilities". In addition, the fact that the
Commissioner succeeded in preventing CREA from changing its rules
in the future suggests that the Commissioner might consider
challenging the rule making authority of a party in advance of
implementation of restrictive rules in an effort to prevent an
abuse of dominance.
The legally binding consent agreement became effective on
October 25, 2010 and will remain in force for 10 years. A copy of
the consent agreement is available on the Competition Tribunal
website at: http://www.ct‐tc.gc.ca .
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guide to the subject matter. Specialist advice should be sought
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