Toronto Real Estate Board v. Commissioner of Competition
(Federal Court) (Civil) (By Leave)
Administrative law - Boards and tribunals - Administrative law – Boards and tribunals – Competition tribunal – Competition Commissioner bringing application against Toronto Real Estate Board claiming anti-competitive policies and practices – What is the appropriate standard for assessing an alleged abuse of dominance? – How do the abuse of dominance provisions apply to an exercise of intellectual property rights in an electronic database, including whether copyright subsists, and where privacy rights are implicated?.
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The applicant, the Toronto Real Estate Board (“TREB”) is a trade association that operates a multiple listing service for the Toronto area that is not available to the general public. TREB’s database contains information about active and past residential property listings, including information pertaining to historical sale prices. TREB’s members have full access to the database at any time which enables them to attract and provide services to clients. Many brokers operate sections of their websites where their clients can log in and view information on virtual office websites (“VOWs”). The resulting efficiencies enable those realtors to offer their services at a lower cost to clients. TREB has adopted a binding rule, however, prohibiting members from posting historical data for clients on their VOWs. There was no restriction though upon how members may communicate the same disputed data to clients through other delivery mechanisms such as in person, by email, or by fax. The Commissioner of Competition brought an application for an order under s. 79(1) of the Competition Act, R.S.C. 1985, c. C-34, prohibiting TREB from engaging in anti-competitive acts, alleging that its data restrictions for VOWs substantially lessened competition. TREB claimed that the restrictions did not have the effect of substantially preventing or lessening competition, stating that the restrictions were due to privacy concerns and its copyright interest in its database. TREB was found to have engaged in non-competitive practices.
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