Publishing Recent Sold Prices on the Internet: TREB and Competition Issues
These problems have been going on for quite some time. There is a decision of the Federal Court of Appeal on point (1 December 2017), that goes against the Toronto Real Estate Board’s position, so they may indeed appeal to the Supreme Court of Canada.
At issue is the release of information concerning “recent sold prices” for properties. The deals haven’t quite closed. TREB and CREA (the Canadian Real Estate Association) take the position that this information must be available to them for the timely and efficient working of the marketplace. In that regard, they secure the consent of the Sellers and Buyers to co-operate to release this information. It’s part of the MLS arrangement.
People generally like to know what’s happening in the market TODAY, not last month or two months ago. Specifically, what did 123 Main Street sell for? It’s just the same as mine. In fact, mine’s better.
Until now, TREB agreed that this sold information would be available to its members for their use ONLY.
Some TREB members wanted to publish this information on the internet and would be visible to all immediately.
TREB said “no”. Recently sold information is to be made available by its members and communicated by them to others by personal conversations, telephone, mail, fax, email or text. It was not simply to be “published” on a website and “out there” for all to see.
TREB and CREA advanced three arguments to support their position:
1) It’s not anti-competitive,
2) It’s private, and
3) It’s copyrighted.
The Federal Court of Appeal ruled against TREB and CREA. The Court concluded:
1) It was indeed anti-competitive. And just because TREB was not competing for business itself, did not mean that it couldn’t be in breach of the Competition Act.
2) The information wasn’t really that secret. Every real estate agent (over 100,000 in Canada) had access to it, as did the general public who asked. There were no real restrictions. The public asked and they were told.
3) Copyright requires some aspect of creativity, no matter how minor, how simple and straightforward that may be. In this situation it is a mere mechanical transposition of numbers on a keyboard. That’s not enough.
All in all, this matter may still take some time to resolve. An appeal to the Supreme Court of Canada is a two-step process, first an application for leave to appeal, followed by the appeal itself. By that time, it could be 2020.
At least, by that time, we will have a final legal decision on point. In the interim, TREB will probably seek an Order staying the matter, that is, postponing the implementation of the Court’s decision until after the Supreme Court has ruled.
On the issue of competition, everyone who wants this information (pending sold prices) seems to be able to get it now. They receive the information by conversations (in presence or by telephone), mail, fax, email or text. They can’t just look it up on the internet. They need to receive this information through a real estate agent who is a member of organized real estate. Just about everyone seems to have a “source”.
Some people have thought that this is private information held by the parties involved and their real estate agents and consequently the public should have no right of access. This is really not the case, the information is distributed now widely. It’s not the public seeking the information, it’s members of TREB seeking to publish it on the internet.
Privacy seems not to be a real issue. Sellers and Buyers were not filing complaints about this. That was the evidence. Besides by closing the information would be available through the Land registry system.
Copyright! Well, that seemed to be a little bit of a stretch! The Court simply said it didn’t meet the test.
One would probably expect a few TREB members to communicate the “just sold prices” on their websites. Why wait for the Supreme Court decision? The transgressors already have the Federal Court of Appeal’s decision on hand to assist them in their arguments.
By way of reply, other traditional brokerages will have to respond by similarly publishing this same information on their websites in order to “remain competitive”.
By 2020, the Supreme Court’s decision may not matter one way or the other because “everyone’s doing it anyways”. If you were a Justice of the Supreme Court of Canada you might be somewhat inclined to save the time of the Court by denying the application for leave to appeal in the first place. It’s a tough call, a well-fought battle and one which will soon be over.
Brian Madigan LL.B., Broker