TREB takes housing data dispute to top court

The Toronto Real TORONTO Estate Board is taking a long-standing dispute over access to housing market data to the Supreme Court of Canada, seeking to appeal a lower court decision that allowed realtors to publish the sales histories of listed properties on their websites, according to court documents seen by the Financial Post.

In December, the Federal Court of Appeals ruled that TREB could not prevent realtor members in the Greater Toronto Area (GTA) from publishing the restricted data contained in its Multiple Listings Service (MLS), including previous home sale prices.

Ruling in favour of the Competition Bureau, the court found the publication of the data presented no privacy concerns. It also concluded that TREB’s restrictions on the information had the effect of preventing competition in the real estate brokerage services market.

In its latest filings to the Supreme Court on Jan. 30, TREB argues the decision on anti-competitive practices was made without any “quantifiable evidence” that publishing the disputed data online would give realtors a competitive edge. Such evidence might include a count of how many visitors to the data portal on the realtor’s website actually converted into active clients. “Without quantifying the effects on competition, it becomes a matter of speculation or blind inference as to whether the business practice has an effect on competition that is substantial, or any effect at all,” TREB’s documents state.

TREB’s MLS website displays information on properties for sale in the GTA, including list prices and photos. Data on past sales prices are restricted to TREB’s 49,000 realtor members and clients can only access it through them.

In its filings, TREB maintains that publishing sales and other market information online violates the rights of real estate clients. Seeking permission to release the data online was not common practice in the past and so was not secured on sales dating back to the 1980s, it has argued. The board also says it holds copyright over the data in question and as a result, has a right to determine its use.

In ruling against TREB’s privacy argument, the Appeals Court decision noted the data in question is already available to the board’s thousands of realtor members. These members can in turn release it to up to 100 clients at a time.

In a statement, the Competition Bureau — which has spent years pushing for more open access to MLS data — confirmed it would oppose TREB’s leave to appeal. The bureau has 30 days to respond to TREB’s filing. “In our view, the Federal Court of Appeal’s decision to uphold the Tribunal’s order is an important win for competition and for consumers, and we will continue to work hard to bring greater competition and innovation in real estate services to consumers in the GTA,” the Competition Bureau said in a statement.

TREB declined to comment.