The Toronto Real Estate Board has launched a major, 11th-hour constitutional challenge, claiming that the federal Competition Commissioner has no jurisdiction over the provincially-regulated real estate industry.
The last-minute legal filing by TREB — just two weeks before a competition tribunal hearing into what the commissioner has alleged are anti-competitive practices by the country’s largest real estate board — is seen as a stalling tactic that has the potential to divert the long-standing case all the way to the Supreme Court of Canada.
It’s unclear if the tribunal hearing, scheduled for Sept. 10 in the complex and bitter war of words between TREB and departing Competition Commissioner Melanie Aitken, will go ahead as planned in light of the latest legal wrangling.
Officials with both TREB and the office of the Competition Commissioner could not be reached for comment Monday evening.
The court challenge was apparently filed last Friday but only became public late Monday.
The tribunal hearing was to have been the culmination of an investigation, launched by the Competition Commissioner five years ago after discount brokerages complained that they were being, in essence, prohibited from competing fairly with traditional realtors by being denied access to property information, such as sold prices, by TREB.
While consumers can access some basic real estate information on public online sites such as Realtor.ca, Aitkin began pressing TREB to allow more detail and end its restrictions on what are known as “virtual office websites” or VOWS.
The idea was that by opening up information, low-cost competitors could get into the business and offer lower cost, a la carte services to homebuyers and sellers looking to do much of the work on their own, from the comfort of their home computers.
TREB protested that the open access would be a violation of personal privacy.
So in May of 2011, the Competition Bureau filed suit against TREB, seeking access to real estate information — like sold prices — that agents routinely hand out by phone, email and in person to clients.
Since then, it’s been an escalating war of words — and lawsuits — between TREB and the commissioner, who recently announced she’s stepping down from the job as of Sept. 21, with TREB at one point accusing Aitken of “unnecessary posturing for publicity.”
Last August TREB approved a VOW policy that it claimed would open up access to its computerized Multiple Listing Service (MLS), but only with a password provided by an agent.
TREB reiterates in its latest filing — a total of 81 pages — that it “denies the Commissioner’s allegations of anti-competitive conduct” and has a code of ethics aimed at protecting clients’ privacy.
Since real estate is provincially regulated, “the Order sought by the Commissioner is constitutionally unavailable due to the Regulated Conduct Defence.”
Source: http://www.thestar.com/business/article/1247876--toronto-real-estate-board-launches-11th-hour-constitutional-challenge-in-competition-case
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