On April 15, 2013, the Competition Tribunal dismissed the Competition Bureau’s
application (the Application) against Canada’s largest real
estate board, the Toronto Real Estate Board (TREB). The Tribunal
found that the abuse of dominance provision under section 79 of the
Act (the Act) did not apply to the facts of the
case, which pertained to TREB’s membership rules governing
the use of its Multiple Listing Service (MLS) data.
The Bureau’s May 27, 2011 application requested that TREB
eliminate rules allegedly denying its real estate agent members the
ability to introduce Internet-based real estate brokerage services
by limiting the use the members could make of the MLS listings and
The Tribunal, stating that the determinative issue was the
fundamental question of whether the Application met the
requirements of section 79, disposed of the matter on that basis
and did not address the other issues raised in the Application. The
Tribunal’s primary holding pertained to the fact that TREB
did not compete with its members in the market - a fact undisputed
by TREB, the Commissioner and the Canadian Real Estate Association
(CREA) (CREA sought and was granted intervenor standing at the
Tribunal proceeding). As set out in the Federal Court of
Appeal’s Canada Pipedecision, for
anti-competitive conduct to be caught by section 79, the conduct
must have had a negative effect on a competitor that is
predatory, exclusionary or disciplinary.
The Tribunal did not accept the Bureau’s proposition that
based on the language of section 78, which sets out a
non-exhaustive enumerated list of anti-competitive acts, section 79
could cover abusive conduct by entities other than competitors. In
the Tribunal’s view, section 78 was a “powerful
indicator” that the rule in Canada Pipe was the
correct approach, given the “strong theme” present in
the examples of anti-competitive acts set out therein.
This decision may also have consequences for the Bureau’s
recently amended Abuse of Dominance Guidelines (the
Guidelines), which, while acknowledging the application of
Canada Pipe, state that “certain acts not
specifically directed at competitors could still be considered to
have an anti-competitive purpose.” The Tribunal observed as
“interesting” that the Commissioner in the Guidelines
did not “clearly state that the dominant party need not
compete in the market”; accordingly, the Application sought
not only to extend the reach of section 79 beyond Canada
Pipe, but also beyond the Guidelines.
For the reasons set out above, the Tribunal dismissed the
Application. However, the Tribunal observed (without intending to
suggest such an application would necessarily succeed) that section
90.1 of the Act might provide a means for the Commissioner to
re-apply to the Tribunal, in which application the Commissioner
could potentially seek an order prohibiting the members of
TREB’s board of directors – who are competitors in the
market – from enforcing the challenged TREB rules.
The Bureau stated in an announcement that it was
disappointed by the Tribunal’s dismissal of its Application,
and would be reviewing the decision to determine next steps.
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