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FCA Rules Toronto Real Estate Board Practice of Excluding Data from Virtual Office Websites is Anti-Competitive

On 1 December 2017, the Federal Court of Appeal (“FCA”) dismissed appeals from two decisions of the Competition Tribunal which held that the Toronto Real Estate Board’s (“TREB”) practice in excluding certain data available on the “Multiple Listing Service” or MLS system from being assessable in “Virtual Office Websites” or VOWs results in a substantial prevention or lessening of competition that is in violation of subsection 79(1) of the Competition Act, R.S.C. 1985, c. C-34.

In brief, VOWs are used by many brokers who operate sections of their websites where their clients can log in and view information on properties. TREB’s data feed delivers information to brokers to populate these sections of their websites; however, such data feed does not include all of the information that is in the MLS database. TREB argued that the Competition Tribunal erred in the following issues: that TREB had substantially reduced competition within the meaning of subsection 79(1) of the Competition Act; that TREB’s privacy concerns or statutory obligations constituted a business justification within the scope of paragraph 79(1)(b); and in its consideration of TREB’s claim of copyright in the MLS database such that TREB’s practice should be exempted from being considered an anti-competitive act under the exception provision in subsection 79(5). The FCA dismissed each of these grounds of appeal, and upheld the Competition Tribunal’s decisions.

According to the FCA docket system, TREB filed a Notice of Motion with the FCA on 6 December 2017 for, inter alia, seeking a stay of the FCA decision, pending outcome of TREB’s application for leave to appeal to the Supreme Court of Canada (“SCC”). We await the further word from the SCC to hear if leave will be granted. See full decision here.

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