After five years of back and forth at various levels of court,
the Competition Tribunal has rendered a decision in the Toronto
Real Estate Board case, partially granting the application brought
by the Commissioner of Competition pursuant the abuse of dominance
provision (section 79) of the Competition
As mentioned in our earlier blog posts, the
Commissioner's application involves a challenge by the
Commissioner against TREB for allegedly abusing its dominance under
section 79 of the Competition Act in relation to
membership rules governing the use by members of certain of the
board's multiple listing service® (MLS®) listing data.
In particular, the Commissioner alleged that TREB's rules
restricted the manner in which real estate brokers and salespersons
may display and use certain MLS® data.
While the decision has yet to be made public, the Tribunal
has released a short summary of its decision that offers some
insight into how the Tribunal concluded that TREB's conduct, on
a balance of probabilities, satisfied all three elements of the
abuse of dominance provision:
The Tribunal determined that TREB substantially or completely
controls the supply of MLS®-based residential real estate
brokerage services in the GTA.
The Tribunal found that TREB has engaged in, and continues to
engage in, a practice of anti-competitive acts through the
enactment and maintenance of certain restrictive aspects of the
rules and policy that TREB has adopted regarding the virtual office
websites (VOW) of its real estate brokers and salespersons.
The Tribunal concluded that these VOW restrictions have had,
are having and are likely to have the effect of preventing
competition substantially in a market.
The Tribunal reached this conclusion after finding that the VOW
restrictions have substantially reduced the degree of non-price
competition in the supply of MLS®-based residential real estate
brokerage services in the GTA, including a considerable adverse
impact on innovation, quality and the range of residential real
estate brokerage services that likely would be offered in the GTA
absent the VOW restrictions.
The next step will be for the parties to provide written
submissions and have an opportunity to make oral submissions to the
Tribunal on the issue of remedies, after which the Tribunal will
make its final order.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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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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