TREB vs. Competition Bureau: Day Six Unpacks Real Estate Data Access and Privacy

The Competition Tribunal hearing, a landmark case pitting the Commissioner of Competition against the Toronto Real Estate Board (TREB), continued its intense proceedings in Ottawa on Tuesday. This pivotal sixth day saw former TREB CEO, Don Richardson, return to the stand for a rigorous cross-examination by John Rook, counsel for the Competition Bureau. The ongoing dispute revolves around critical issues of real estate data transparency, access to sold prices, and the operational guidelines for Virtual Office Websites (VOWs), shaping the future landscape of the Canadian real estate market for both consumers and professionals.

The early hours of the day’s testimony delved deeply into TREB’s internal governance, specifically examining its bylaws and various standard forms utilized by its members. A significant portion of the discussion focused on the timing and rationale behind amendments made to these crucial documents. Particular scrutiny was applied to clauses pertaining to Virtual Office Websites (VOWs), data feeds, and existing listing agreements, all central to the Bureau’s claims regarding anti-competitive practices and restrictions on information flow.

Key Witness Testimony: Don Richardson on TREB’s Data Policies

A notable revelation emerged later in the morning during Richardson’s cross-examination. He confirmed that TREB members, when accessing the sophisticated Stratus system, possess the capability to effortlessly email comprehensive property search results to consumers. This functionality, accessible at the mere press of a button, allows agents to transmit detailed information including list price, sold price, and the number of days a property has spent on the market. This capacity for direct and detailed data sharing contrasted sharply with TREB’s public stance on data dissemination.

Richardson elaborated that the decision to send these search results rests entirely as a “judgement call” with the individual member. This discretion, he testified, is based on whether the results align with the original intent of the search, which he previously clarified as relating to an actual or potential real estate transaction. Rook, representing the Competition Bureau, then pressed Richardson to confirm that no limitations were imposed by the search parameters themselves, and crucially, that any recipient of this detailed information could easily print it. This highlighted the ease with which information, deemed sensitive by TREB, could be shared.

Further underscoring the Bureau’s line of questioning, Richardson confirmed that TREB had never taken disciplinary action against any of its members for emailing sold property data and other detailed information to clients. He also indicated that the Comparative Market Analysis (CMA) process, a common tool for valuing properties, operated under a similarly flexible framework regarding information sharing. This created a perceived inconsistency in TREB’s rules, as Rook pointed out, “So, not to put too fine a point on it, but just so the record is clear, members can, and do, send this information by email over the Internet but are not allowed to display it on a VOW, correct?” To this, Richardson unequivocally replied, “This is correct.” This admission became a central point of contention, highlighting a perceived double standard in TREB’s data governance policies.

The Intricacies of MLS Data and Seller Consent

The discussion then shifted to the MLS Data Information Form, a critical document used to capture relevant property details for entry into the Multiple Listing Service system. Rook demonstrated that this form provides sellers with the explicit opportunity to determine the extent to which their personal property information is distributed over the Internet, including whether it can be displayed on a Virtual Office Website. While seemingly offering control, the Bureau’s argument often centers on whether these restrictions ultimately serve the public interest or primarily protect the existing market structure.

Judicial Scrutiny: Privacy Concerns vs. Public Access

The afternoon session brought direct questioning from all three tribunal panel members, each seeking clarity on TREB’s policies. Chief Justice Paul Crampton raised a pertinent question regarding perceived inconsistencies in data privacy concerns. He queried why organizations like the Municipal Property Assessment Corporation (MPAC) system and Teranet – Ontario’s exclusive provider of online property search and registration data, which includes sales data and transfer transaction records across the province – do not appear to harbor the same privacy concerns as TREB when posting similar information. Justice Crampton articulated his struggle to understand the origins of TREB’s unique stance, stating, “I’m just trying to get a sense of how we got here. At some point the privacy issue seems to go away for MPAC and Teranet, and as you testified, they will make some of the same information available for a price.”

Richardson, however, was unable to provide an explanation for MPAC’s or Teranet’s data policies, advising the panel to review those organizations’ respective Terms of Use information. Chief Justice Crampton further pressed, asking Richardson what would prevent a consumer, having received detailed property information from a Realtor via email with a “click of a button,” from subsequently redistributing that information to a relative or acquaintance. Richardson responded that TREB has its own Terms of Use prominently displayed on its website. This led to a pointed follow-up from Crampton: “But, if I am getting this (information) from an email, I’m presumably not going to a website to read the Terms of Use, correct?”

Panel member Dr. Wiktor Askanas then sharply observed, “So you have a policy you created about terms of use and no way to police it,” directly questioning the enforceability of TREB’s stated policies in the digital age. Richardson conceded that TREB was operating to the best of its abilities given its available resources. Askanas also inquired about the number of complaints filed concerning VOWs, to which Richardson responded that he was aware of “20, 30 or 40 in a fairly short amount of time.” Justice Denis Gascon then sought to clarify the source of these complaints, with Richardson confirming that the majority originated from brokers or other VOW operators, rather than consumers. In fact, Richardson emphasized that TREB receives “very few complaints from consumers about privacy issues,” estimating perhaps only “about two complaints a year came from members of the public about privacy issues.” This distinction is critical to the Bureau’s case, which posits that VOW restrictions primarily benefit incumbent brokers, not consumer privacy.

Real Estate Innovation on Trial: Perspectives from Industry Leaders

Following Richardson’s testimony, TREB counsel David Vaillancourt called Evan Sage, Vice President and Sales Representative with Sage Realty in Toronto, to the stand. Sage’s testimony provided an illuminating look into how innovative real estate firms are leveraging technology to maximize property exposure and generate leads in a competitive market. He detailed his firm’s strategic use of unique websites and professional photography for each listing, sophisticated social media tools like Facebook to drive traffic, and even empowering clients to use their own social networks to advertise properties. Furthermore, Sage highlighted the use of advanced analytics software on the backend of each website to track web traffic origins, whether from flyer campaigns, social media, or major portals like realtor.ca. This demonstrated a proactive approach to digital marketing that embraces data, contrasting with TREB’s more cautious stance.

Sage also revealed his firm’s ambitious plans to transform the Sage website into a comprehensive consumer portal, offering listings not just within the Toronto area, but across the entire country. The underlying purpose, he explained, was to foster innovation and generate valuable sales leads, recognizing that “The Internet has been a game changer for our industry and we’ve certainly taken a hold of that.”

Evan Sage’s Cross-Examination: Lead Generation and Data Use

Under cross-examination by Competition Bureau lawyer Emrys Davis, Sage was presented with a screen capture from his website, drawing specific attention to an “Ask a Question” button. After a consumer entered their contact information, this button offered options for an agent to contact them for “complimentary buyer’s services and seller home valuations.” Davis probed the nature of these “complimentary” services, to which Sage confirmed, “No, we do it for lead generation,” acknowledging his company’s hope that these leads would convert into clients. He also confirmed that these home evaluations would indeed contain valuable information such as comparable properties and prices, further showcasing the practical utility of data that TREB sought to restrict.

Davis then directed attention to an April 23, 2015 blog post authored by Sage agent Melanie Piche, titled The Future of the Real Estate Industry (and Why You Should Care). Davis specifically highlighted “Prediction #1: Shifting Consumer Needs Change the Role of the Agent.” This section of the blog post articulates a significant industry transformation: “As consumers continue to become more informed via online research, we’re seeing a huge shift in what Buyers and Sellers expect from their real estate agent. We’re no longer going to be Gatekeepers of Information.” The post further critiques the industry’s historical practices, stating, “The Canadian real estate industry has a well-deserved reputation for hoarding data. Over the last few years, we’ve seen several court challenges as consumers attempt to get freer access to real estate data – specifically sold prices. While the industry claims to want to ‘protect the public’s privacy’ (and there are some good arguments for this), a lot of people (myself included) believe that the quest to keep sold prices private has just as much to do with protecting real estate agent jobs.” This testimony directly supported the Competition Bureau’s narrative that restrictions on data access serve to protect agent interests rather than consumer privacy.

Tim Syrianos on Brokerage Modernization and Data Utility

The day’s proceedings also featured Tim Syrianos, broker of record and owner of Re/Max Ultimate, who has served as a director with TREB for the past four years. Syrianos presented his brokerage as a technology-driven enterprise, operating four distinct websites designed to attract diverse consumer segments. He proudly noted that his firm is “80 to 85 per cent paperless” and actively offers two different web applications – one leveraging the TREB IDX feed and another utilizing a VOW feed, demonstrating an embrace of various data distribution models. Syrianos firmly believes that providing “more services, technology and features to Realtors is the way to go.” He articulated his philosophy: “Some people opt to recruit other agents with the phone. I want to provide (agents) with the best tools in the marketplace. When you become an administrative arm to them, they can focus on their business,” emphasizing that such technology ultimately benefits the consumer by enabling agents to be more efficient and client-focused.

Syrianos then underwent a cross-examination by Emrys Davis, similar to Sage’s. Davis meticulously walked through the process by which a consumer could obtain a free home evaluation report from a Re/Max Ultimate agent. He highlighted that these reports ultimately include sold information, crucially encompassing pending sales prices where conditions have been met, released, or waived. Davis pointedly asked, “And the pending sales prices are the most recent sales and particularly relevant to me as a prospective seller, correct?” Syrianos readily agreed. Davis continued, “And when the information is provided to me as a prospective seller, the agent is not limiting their pool of listings in any way, correct?” Syrianos confirmed this to be true, further demonstrating that agents actively use comprehensive data to serve clients effectively. Using the example of a client losing a bidding war, a frequent occurrence in Toronto’s competitive housing market, Davis had Syrianos confirm that the final selling price could later be obtained from the consumer’s agent, establishing it as an essential benchmark for potential buyers. “So, it’s relevant information for me as a potential home buyer?” asked Davis, to which Syrianos affirmed its relevance.

Economic Analysis in the Spotlight: Dr. Jeffrey Church’s Expert Testimony

TREB’s final witness for the day was Dr. Jeffrey Church, a distinguished economist specializing in competition policy. Dr. Church authored an expert report for TREB, specifically challenging the findings of Dr. Gregory Vistnes, who had presented his report in part as a Competition Bureau witness earlier in the hearing. Dr. Church dedicated over an hour to dissecting intricate economic issues and formulas, methodically attempting to cast doubt on the validity and methodological soundness of Dr. Vistnes’ report and assessments. His testimony served as a crucial counter-argument to the Bureau’s economic claims.

Ultimately, Dr. Church’s assessment concluded that Dr. Vistnes had failed to establish TREB as a dominant entity within the relevant market. Furthermore, Dr. Church opined that TREB’s VOW policy is not anti-competitive in nature, nor does it facilitate “buyer steering,” a practice where agents might guide buyers towards certain listings for personal gain. He concluded his testimony by asserting his belief that legitimate justifications underpin TREB’s VOW policy, and that its fundamental purpose is not to stifle competition. Dr. Church is slated to face cross-examination when the hearing reconvenes on Wednesday morning, promising further economic debate and scrutiny on the pivotal role of data in the real estate industry.