At issue in the six-week long trial held in the fall of 2012 was
whether TREB's restrictions of how much information posted by
real estate agents on MLS would be visible to the public at large
over the Internet was an abuse of TREB's dominant position and
thus, anti-competitive. The Commissioner objected to what were
alleged to have been overly restrictive rules that prevented
consumers from obtaining and using historical sales information and
other information available only to real estate brokerages. If the
rules were relaxed, the Commissioner claimed, innovative solutions
and more à la carte real estate services would be available
to consumers and at a lower cost.
In The Commissioner of Competition v. The Toronto
Real Estate Board, a three-member panel of the Tribunal
rejected the Commissioner's Application under the Abuse of
Dominant Position provisions of the Competition Act citing the fact that
since TREB and the Commissioner both agreed that TREB, who controls
MLS, does not compete with real estate agents, TREB's
restrictions cannot have the negative effect on a competitor as
required by the rule enunciated by the Tribunal in a case known as
Canada Pipe. In that case, the Tribunal
held that the dominant firm must compete with the firms harmed by
the dominant firm's practice of anti-competitive acts in order
to satisfy the test under subsection 79(1) of the Competition Act.
Also harmful to the Commissioner's case was the fact that
the Commissioner's own "Abuse of Dominance Guidelines"
specifically state that the dominant party must intend to
negatively impact a competitor. TREB not being a competitor of its
member real estate agents, the Tribunal's logic went, meant
that it could not have had the negative impact alleged by the
Commissioner. This was consistent, the Tribunal held, with the
Abuse of Dominance Guidelines, which do not clearly state that the
dominant party need not compete in the market.
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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