"Allowing the Tribunal's finding to stand could leave a significant loophole in the application of the Competition Act," said Interim Commissioner of Competition John Pecman, in a statement announcing the Federal Court of Appeal filing. "While most trade associations comply with the Competition Act, we are concerned that, if the Tribunal's decision is left to stand, trade associations may be tempted to develop rules aimed at preventing or eliminating potential new forms of competition."
The Bureau has been seeking to force TREB to further open the MLS to outside services, such as online discount realties and sale-by-owner listings.
The Bureau argues that TREB's rules restrict how its member agents provide information to customers, such as previous listings and sale prices, thereby denying agents the ability to introduce new and innovative real estate brokerage services using the Internet. It is also concerned that the listing site unfairly ties sellers and buyers to real estate agents by blocking key informations, especially about the listing and the seller.
In the appeal, the Bureau is arguing that the Tribunal's April ruling was based on an overly narrow interpretation of the Competition Act’s "abuse of dominance" provision. The Tribunal earlier ruled that TREB, as an incorporated trade association, did not compete with its own members in the real estate brokerage market and therefore couldn’t be found to have contravened the abuse of dominance provision.
"We believe that the Competition Tribunal erred in dismissing our application and in not ruling on the facts of the case,"" added Pecman. "It is our view that TREB's anti-competitive behaviour continues to restrict potential homebuyers and sellers from taking advantage of a greater range of service and pricing options when making one of the most significant financial transactions of their lives."
TREB has argued that its restrictions on use and reproduction of MLS data are intended to protect the privacy rights of consumers and is not anti-competitive. The Tribunal awarded TREB legal costs when favoring it in its April decision.
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