Real estate board comes out swinging after tribunal ruling

The Toronto Real Estate Board is telling consumers their privacy will be hurt, after a recent Competition Tribunal ruling that clears the way for information about house sales to be shared online.

John DiMichele, TREB’s chief executive officer, said they’ll be appealing the tribunal’s June decision, after asserting “the Tribunal erred in fact and law in determining that TREB has lessened competition.”

The TREB says the board has concerns people will have the information about their home sale prices shared without explicit consent.

“How do you feel about having the sale price of your home placed on the Internet immediately after you sell your property, whether it’s closed or not?” says John DiMichele, TREB’s chief executive officer.

The ruling relates to data in the Multiple Listing Service System Database for homes that have been sold or are pending to be sold, and the realtor’s ability to share that information more widely through a Virtual Office Website. DiMichele says TREB is not opposed to the dissemination of data about house sale prices, but he said they want to ensure the appropriate consents are provided by consumers before the information is available online.

“Privacy laws and decisions of the Privacy Commissioner of Canada are clear in their requirement for consumers to provide their consent prior to the release of their personal financial information and specifically the sold price of your home. The new Digital Privacy Act which came into force in 2015 further buttressed the privacy rights of consumers,” said a TREB news release.

“Canada’s privacy law regime requires that any disclosure of personal financial information for uses not previously identified to the consumer requires the consumer's informed consent. It is TREB’s view that the decision of the Competition Tribunal, with respect, does not respect this right of consumers within the GTA.”

However, the Competition Bureau has welcomed the ruling.

“The Bureau remains focused on ensuring that consumers benefit from innovation and competition in the provision of real estate services,” said John Pecman, commissioner of competition, in a June 3 news release.

A Competition Bureau spokeswoman confirmed TREB “has applied to the Federal Court of Appeal to stay the Competition Tribunal’s order, pending resolution of TREB’s appeal.” She also confirmed the Bureau “has been served with a Notice of Appeal by TREB alleging that the Competition Tribunal erred when it ruled in favour of the Bureau in its abuse of dominance case against TREB.”

“The Commissioner of Competition remains focused on addressing TREB’s appeal and achieving a timely remedy to fully address the concerns raised in his application,” she says.

For TREB, if the order is not appealed, there’s a concern TREB “cannot prevent personal financial information or other confidential information of residential property sellers and buyers within the GTA, such as pictures from being copied, sold, or misused once this information is made available on the Internet.”

“We believe that there were a few mistakes made, and we want to get clarification, but, ultimately, it comes down to the simple fact that, since our first meeting with the bureau, we made it really clear that we would not be opposed to distribution of any sold information but what we have said is that there are laws and we believe, particularly with consent, that the consumers should have the right to choose,” says DiMichele. “The bureau and the tribunal feel that the distribution of the sold information, for some reason, the current consents are good enough, but with the new Digital Privacy Act, we feel that that’s not the case.”

Bob Aaron, a real estate lawyer at Aaron & Aaron Barristers and Solicitors, says the TREB’s appeal “is strictly a delaying tactic.”

“TREB should face the inevitable and work within the Competition Tribunal’s guidelines in the public interest, and not against it,” he says.

“Every day, real estate agents post on the Internet photographs, floor plans, and room sizes of their listings — revealing to the public the most intimate details of the contents and furnishings of the houses. And yet TREB argues that sale prices are too personal to post — even with permission. I don’t see the rationale behind their position.”

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