On February 27, 2012, the Commissioner of Competition brought a motion for the production of nine years of MLS data from The Toronto Real Estate Board in this ongoing abuse of dominance case. According to the Commissioner’s motion, the Bureau has unsuccessfully requested this presumably vast volume of MLS data from TREB and now seeks to compel TREB to produce the data, which is, according to the Bureau, “at the very heart of [the] proceeding”.
In particular, the Bureau asserts that TREB’s MLS data is relevant to its assessment of geographic market, market shares of individual brokerages and agents, the ability of real estate brokers that wish to use “virtual office websites” or “VOWs” effectively against incumbent real estate brokers and issues relating to commissions.
The Bureau’s theory in this case is essentially that TREB has abused its dominant position in the residential real estate services market in the Greater Toronto Area through membership rules that restrict its members’ ability to operate “virtual office websites” or “VOWs”.
Real estate board MLS systems in Canada, which are operated by local real estate boards, typically include a range of information relating to both property listings (e.g., price, dimensions and other relevant property characteristics, such as number of rooms, bedrooms, zoning, etc.) and “sold” information once a property is sold (e.g., sale price, number of days a property was on the market, agents involved in the sale, etc.).
While TREB has asserted privacy law concerns regarding the disclosure of its MLS data, the Bureau asserts privacy law exceptions in its pleading. The Bureau also pleads the Tribunal’s discovery rules for the right to obtain production of documents (see: notice of motion, Competition Tribunal Rules).
Hearing dates have been scheduled in this case for September, 2012 (see: Revised Scheduling Order).
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