On July 24, 2014, the Supreme Court of Canada dismissed
the Toronto Real Estate Board's ("TREB") application
for leave to appeal the Federal Court of Appeal's (the
"FCA") decision ordering that Commissioner of
Competition's challenge to certain TREB restrictions on the use
of data from its MLS system. Accordingly, the case will again
be before the Competition Tribunal (the "Tribunal") for
As reported in our previous (February 4, 2014) blog post, in
2011 the Commissioner of Competition (the "Commissioner")
brought an application to the Tribunal against TREB under the abuse
of dominance provisions. The Commissioner argued that TREB's
restrictive practices (in particular those relating to the use of
information on its multiple listing service) prevented member
agents from sharing historical property information with consumers
in innovative ways (e.g., through virtual office websites).
The Tribunal concluded 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 relied on the
FCA's decision in Canada (Commissioner of Competition) v.
Canada Pipe ("Canada Pipe").
On appeal from the Tribunal, the FCA concluded that the Tribunal
had erred in its interpretation of Canada Pipe.
Accordingly, its interpretation regarding applicability of the
abuse of dominance provisions to TREB's conduct (or the conduct
of trade associations generally) was incorrect. On this issue, the
FCA 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
reconsideration. TREB sought leave from the Supreme Court to appeal
the FCA's decision.
As a result of the Supreme Court decision, the case will be
reheard by the Tribunal which will have to take into account the
statements made by the FCA with respect to the application of the
abuse of dominance provisions of the Competition Act to
Until the Tribunal rehears the case, there will continue to be
uncertainty regarding how the abuse of dominance provisions apply
to trade associations (which typically do not compete with their
members), in particular with respect to the creation of binding
rules or procedures that could impact the manner in which members
For a copy of the Bureau's press release, please
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The Canadian Competition Bureau issued a template document for use as a form of Consent Agreement, to be filed with the Competition Tribunal to resolve concerns the Bureau may have with proposed mergers.
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