Earlier this year, the Federal Court of Appeal (FCA) ruled that
the Competition Tribunal (Tribunal) erred in dismissing the abuse
of dominance case brought by the Commissioner of Competition
(Commissioner) against the Toronto Real Estate Board (TREB). The
FCA's ruling hinged on its finding that the Tribunal
incorrectly interpreted its 2006 decision in Canada
(Commissioner of Competition) v. Canada Pipe Co. and,
consequently, the application of the abuse of dominance provisions
of the Competition Act (Act). Accordingly, the FCA sent
the Commissioner's application back to the Tribunal for
For more detail on the FCA decision and the original Tribunal
decision, please see our earlier articles here and here.
Following the FCA's decision, TREB filed an application to
the Supreme Court of Canada (SCC) for leave to appeal the decision
of the FCA.
On July 24, 2014, the SCC dismissed TREB's application. This
means that the Tribunal must now reconsider the Commissioner's
application against TREB.
In its press release, the Competition Bureau states "[w]e
continue to believe that prohibiting TREB's anti-competitive
practices and allowing real estate agents to provide the services
of their choice is the only way to ensure that consumers and real
estate agents alike can benefit from increased competition for
residential real estate brokerage services in the Greater Toronto
TREB's reported statement is that "the Commissioner of
Competition is persisting in its efforts to erode the personal
privacy and contractual safeguards afforded by the MLS® system.
TREB will continue to work to protect the personal information
entrusted to it and its members by the general public, while it
strives always to do what it can to ensure a highly competitive
environment for real estate professionals in the GTA."
McCarthy Tétrault Notes
The FCA decision in TREB casts uncertainty over who can be the
subject of an abuse of dominance application by the Commissioner.
It suggests, at a minimum, that trade associations can be targets
of abuse of dominance cases. The uncertainty created by this
decision is troublesome, particularly in view of the fact that
administrative monetary penalties (AMP) of up to $10 million are
now available in abuse of dominance cases. On its reconsideration
of the case, it would be beneficial for the Competition Tribunal to
provide guidance on this issue.
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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