Canadian COMPETITION LAW

On August 31, 2011, The Canadian Real Estate Association requested leave to intervene in the Competition Bureau’s abuse of dominance case against The Toronto Real Estate Board to support TREB.

The Competition Tribunal Act allows any person affected by Tribunal proceedings to intervene in proceedings with leave from the Tribunal.

The Tribunal has held that to grant intervenor status, the following elements must be met: (i) the matter alleged to affect the person seeking leave to intervene must be legitimately within the scope of the Tribunal’s consideration (or must be a matter sufficiently relevant to the Tribunal’s mandate); (ii) the person seeking leave to intervene must be directly affected; (iii) all representations made by a person seeking intervenor status must be relevant to an issue specifically raised by the Commissioner; and (iv) the person seeking leave to intervene must bring a unique or distinct perspective to the Tribunal that will assist the Tribunal in deciding the issues before it (see e.g., Commissioner of Competition v. Canadian Waste Services Holdings Inc., 2000 Comp. Trib. 10; Commissioner of Competition v. The Canadian Real Estate Association, 2010 Comp. Trib. 12 (order allowing National FSBO Network Inc.’s motion for leave to Intervene)).

The Bureau filed its abuse of dominance application before the Tribunal on May 27, 2011, arguing that TREB, through board rules restricting the operation by its members of “virtual office websites” (“VOWs”), had abused it dominant position disciplining and excluding real estate firms wanting to offer innovative Internet brokerage services, including VOWs.

In particular, the Bureau’s view in this case is that TREB and its members control the market for residential real estate brokerage services in the Greater Toronto Area, that the board has engaged in a practice of anti-competitive acts (board rules and policies preventing members from operating VOWs) that have resulted in a substantial lessening of competition.  According to the Bureau, in the absence of TREB’s rules, consumers would have increased choice in a market with lower cost real estate services.

In its request to intervene, CREA argues that it has been at the “forefront of the Canadian real estate industry’s response to the challenges and opportunities created by the Internet”, that the Tribunal’s decision will have national implications for the real estate industry and that it has a direct interest in the proceeding by virtue of its trademark rights in the MLS® and REALTOR® marks.

In particular, CREA argues that it has a “direct interest in ensuring that any use on the Internet of information sourced from a system is subject to sufficient rules and policies to protect the standards associated with its trademarks”. (CREA’s trademarks are “certification marks”, which under section 23(1) of the Trade-marks Act allows CREA to licence others to use its marks in association with services that meet its defined standards for services.)

CREA also argues that if granted leave to intervene, it will be able to offer unique perspectives on: (i) the Canadian real estate industry, both respecting competition matters and the development of innovative Internet services for organized real estate; (ii) the operation of VOWs and similar Internet and data sharing vehicles; (iii) specific issues triggered by the use of Internet and data sharing vehicles, including privacy, security and terms of use; (iv) how a Tribunal order will impact the overall Canadian real estate industry; and (v) the competitive effects of VOWs and other Internet and data sharing vehicles.

For CREA’s request for leave to intervene see:

Commissioner of Competition v. The Toronto Real Estate Board – Request for Leave to Intervene

For the other pleadings in this case see:

Competition Tribunal

For more about this case see:

Competition Bureau Files Competition Tribunal Application Against the Toronto Real Estate Board

Competition Bureau Amends its Abuse of Dominance Case Against the Toronto Real Estate Board

Toronto Real Estate Board Fights Back in TREB Abuse of Dominance Case

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