Did TREB stifle competition?

by Neil Sharma24 Aug 2018

The Supreme Court of Canada yesterday refused to hear the Toronto Real Estate Board’s appeal that would have continued the prohibition on sold data, effectively ruling in favour of the federal Competition Bureau, and most observers aren’t surprised.

Sarita Samaroo, principal lawyer at SST Law Professional Corporation, believes TREB took a protectionist stance during litigation rather than one born of earnest fears over consumer privacy.

“I’m quite surprised that TREB has been against the decision as it stood,” said Samaroo. “I thought it was quite strange, given who they represent, and that there should be as much real estate data as possible. I understand the protectionism, because they want to ensure the public hires realtors to access that information, but I don’t see how it can harm realtors for the public to have more information on hand. I thought it strange that TREB has been against this from the beginning.”

She moreover asserts that real estate professionals will not, in fact, suffer diminishing commissions because of the decision. On the contrary, Samaroo thinks that availing the public of the disputed data protects realtors from being cut out of transactions.

“The agent is due their commission payable, irrespective of whether the listing is suspended or not,” she said. “If it’s expired, withdrawn or terminated, that is different. But where an agent is involved, they could lose their commission. It could prevent more private sales because there is a tendency right now with a lot of buyers and sellers in this market get rid of their realtor because the market is slower. They may just suspend the listing and try to sell privately, but that cuts out the realtor. However, that information is now available publicly. That could help realtors.”

Like Samaroo, Tom Storey, a sales representative with Royal LePage Signature Realty, isn’t surprised by the outcome of the years-long litigation. For starters, going through a sales agent to access sold data has never been arduous, but Storey welcomes better educated clients.

“I could understand, and even support, the reason TREB doesn’t want the data to be released,” he said. “If I buy a property and it closes in 60 days, it would be posted online right away and that would be problematic, so I see both sides, but the days of people coming to us because we hold that information ended a long time ago. Our job is to go through that data with our clients to educate them on how they can use it to their advantage.”

As for losing business to fledging virtual office websites, as they’re known, Storey isn’t the least bit concerned.

“I know where my business comes from, and it’s from my database,” he said. “It comes from repeats and referrals. Any realtor will tell you that’s where their business comes from.

“For the industry as a whole, I think this is good for us.”

At the heart of the matter is the Competition Bureau’s contention that TREB stifled competition by withholding sold data access to the detriment of virtual office websites, the latter of whom often undercut industry standard commission rates.

“It’s interesting that the Competition Bureau had to get involved in order to have this available to consumers, but again I have to agree with the Competition Bureau’s stance that TREB had anti-competitive restrictions,” said Samaroo. “I think TREB was insulating its members previously, and I think now it will open up more room. There will be more companies able to share that data with the public so we’ll probably see an evolution.”

Sold data is available in the United States, which Samaroo is sure played a crucial role in the Supreme Court’s decision not to hear TREB’s appeal. The ruling might also hasten a major American player’s entry into the Canadian market.

“I think those online models will push that data and they will become more prevalent because they’ve been limited to this point,” said Storey. “Zillow is coming to Canada eventually and they’re going to love this.”

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