On April 15, 2013, the Competition Tribunal (Tribunal) released
its decision in the high-profile case against Toronto Real Estate
Board (TREB) regarding access to the Toronto Multiple Listing
Service system (Toronto MLS system). The Tribunal held that because
TREB (a trade association) does not compete with its members, its
actions in relation to those members are not subject to review
under the abuse of dominance provision of the Competition
In May 2011, the Commissioner of Competition (Commissioner)
initiated abuse of dominance proceedings against the TREB
under section 79 of the Act, alleging that TREB was using its
control of the Toronto MLS System to enforce certain rules that
limit the use of the Toronto MLS System and related data on the
Internet by TREB's member agents. The Commissioner further
alleged that TREB's rules substantially prevent and lessen
competition in the market for the supply of residential real estate
brokerage services to vendors and purchasers in the Greater Toronto
The Commissioner's application sought an order from the
Tribunal that would have, among other things, forced TREB to
eliminate rules that deny real estate agents the ability to
introduce Internet-based real estate brokerage services, such as
"virtual office websites".
The Tribunal dismissed the Commissioner's allegations of
anti-competitive practices by TREB, noting that the alleged
anti-competitive practices do not fall within the scope of the
abuse of dominance provisions of the Act, as they are not directed
at a "competitor." More specifically, the Tribunal
concluded that the Commissioner's application did not follow
the analysis set forth in the Federal Court of Appeal's (FCA)
decision in Canada (Commissioner of Competition) v. Canada Pipe
Co. (Canada Pipe) because TREB does not compete with its
member agents and therefore, TREB's rules cannot have a
negative effect on a competitor, as was found in Canada
The Tribunal also noted that Commissioner's suggestion that
certain acts not directed at competitors could also constitute
"anti-competitive acts" is wrong, as it would extend the
reach of section 79 beyond the principles set forth by the FCA in
Canada Pipe and those set forth in the Commissioner's recently
published revised Abuse of Dominance Guidelines.
Finally, the Tribunal also relied on subsection 79(4) of
the Act, in support of its consideration that paragraph 79(1)(b)
applies only if the dominant firm is a "competitor."
McCarthy Tétrault Notes
While the Tribunal dismissed the Commissioner's allegations,
it left the door open to an application under section 90.1 of the
Act, which authorizes the Tribunal to make remedial
cease-and-desist orders in connection with agreements between
competitors that substantially prevent or lessen competition. The
Tribunal noted that in his Competitor Collaboration
Guidelines, the Commissioner considers that rules, policies,
by-laws or other initiatives that prevent or lessen competition
substantially and that are enacted and enforced by a trade
association with the approval of members who are competitors
constitute agreements between competitors for the purposes of
section 90.1 of the Act.
It remains to be seen whether the Tribunal would consider that
an application by the Commissioner under section 90.1 of the Act
would be contrary to subsection 90.1(10) of the Act, which provides
that the Commissioner cannot commence proceedings under
section 90.1 on the basis of the same facts on which an order
is sought by the Commissioner under section 79 of the Act.
The Commissioner of Competition addressed innovation, enforcement and policy initiatives at the Competition Bureau in his keynote speech, "Strengthening Competition: Innovation, Collaboration and Transparency."
Used car listing website operator CarGurus Inc.'s attempt to force rival Trader Corporation to supply it with vehicle listing data has encountered a dead end as the Competition Tribunal denied it leave to commence a private application under several provisions of the Competition Act.
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