Yesterday, the Federal Court of Appeal (the "Court")
overturned the Competition Tribunal's (the
"Tribunal") decision in the Toronto Real Estate Board
("TREB") matter, which now goes back to the Tribunal for
rehearing. The Court's decision was based on its view that the
Tribunal had interpreted the term "competitor" in an
overly narrow manner, which led to its incorrect conclusion that
the abuse of dominance provisions of the Competition Act
(the "Act") could not apply to a trade association.
While the Court's decision was based on the technical
interpretation of the existing case law and relevant provisions of
the Act, it also indicates that industry participants cannot
immunize themselves from the abuse of dominance provisions by
engaging in anti-competitive behaviour through a trade
In 2011, the Commissioner of Competition (the
"Commissioner") brought an application against TREB under
the abuse of dominance provisions. The Commissioner argued that as
a result of TREB's restrictive practices (in particular those
relating to the use of information on its multiple listing
service), member agents did not have the flexibility to share
historical property information with customers in innovative ways
(e.g., through virtual office websites).
In 2013, after a lengthy hearing, the Tribunal held that TREB,
as an incorporated trade association, does not compete with its own
members in the real estate brokerage market and therefore cannot be
found to have contravened the abuse of dominance provisions. In
reaching its conclusion that the abuse of dominance provisions
could only apply to the actions of a competitor, the Tribunal
had relied on the Court's decision in Canada (Commissioner
of Competition) v. Canada Pipe ("Canada
Pipe"). The Commissioner appealed the Tribunal's
The Court concluded that the Tribunal had erred in its
interpretation of Canada Pipe. As a result, its
interpretation as to the applicability of the abuse of dominance
provisions to TREB's (or the conduct of trade associations
generally) was incorrect. In particular, the Court held that there
was no support for the Tribunal's view that the abuse of
dominance provisions could not apply to trade associations, in
particular with respect to association rules that are binding on
its members. Accordingly, the Court allowed the appeal
and the application was sent back to the Tribunal for
For a copy of the Federal Court of Appeal decision, please click here.
For a copy of the Bureau's press release, please click here.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
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.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).