The Toronto Real Estate Board is sending threatening legal letters to some of its own member brokerages accusing them of “jumping the gun” on the publication of home sale data online just weeks after it lost a landmark competition law case related to the control of such real estate data.
In response, several popular sites have disabled parts of their site that display the selling prices of homes in the Greater Toronto Area.
According to Brian Facey, a competition lawyer with Blake, Cassels & Graydon LLP who represents TREB, the issue is partly about timing. TREB believes it still has days or weeks left to comply with an order from the Competition Tribunal that banned the kinds of data restrictions its lawyers are describing in the legal threats, and in the meantime he says “the old rules are in force.”
“Some people are waiting until the order comes into place and they shouldn’t be at a disadvantage competitively with people who are jumping the gun,” Mr. Facey said. “I think TREB needs to use all of its legal rights to protect the data that it has.”
In the past week, a number of brokerages with a digital presence – sometimes referred to as operating virtual office websites – began receiving cease-and-desist letters signed by Paul Stoyan, chairman of law firm Gardiner Roberts LLP. The “notice of violation” reads: “We are legal counsel to TREB. Your website and app have been identified as being out of compliance with the Data Rules. You must cease and desist your unauthorized and infringing use of data derived from the TREB MLS® System being displayed on your website and app immediately.
“Any Member who TREB determines has violated the Data Rules could lose access to the data, have their membership in TREB revoked, or face further legal action in the courts.”
Online brokers who believe they have done nothing wrong are nevertheless taking the threats seriously and are concerned about losing access to critical MLS data tools.
“We feel we’re being unduly targeted and threatened,” said Zoocasa chief executive Lauren Haw, who said her company received the letter and took the selling prices off its site for now. “We are interested in sharing this data, we believe the Supreme Court was clear, but we are also active members in TREB and we’re awaiting guidance from them.”
The letters are essentially a demand to prove that members are not grabbing data from unauthorized sources, according to Mr. Facey.
“The Disputed Data is not currently supplied by TREB to Members or Member AVPs in the VOW Datafeed. So If a member has been posting sold data at the current time, TREB does not know the source of this information,” he said in a statement, although he later acknowledged there could be legitimate sources for the data.
“Most websites posting this information are pulling the sold info from another source,” said Joseph Zeng, CEO of HouseSigma Inc. He said his company hired a lawyer to respond to TREB’s letter, but intends to keep posting sales price data on its website until he gets further clarification on the ruling. He also declined to specify from where HouseSigma gets its sold data, citing trade secrets. “It doesn’t matter where you obtain the information from, you should be able to display information related to the sold price,” he said.
Selling prices were one of the items of “disputed data” described in the order issued by the Competition Tribunal in 2016 that instructed TREB to stop restricting the uses of its VOW data feed by its member brokers. TREB fought that order all the way to the Supreme Court, finally losing its appeal on Aug. 23, when the country's top court declined to hear it.
Specifically, the order states: “TREB shall not preclude or restrict its Members' display on their VOWs, on any device (including but not restricted to computers, tablets, or smartphones), of the Information, whether obtained from the VOW Data Feed or another source.”
Statements from TREB have argued that it had 60 days from the Supreme Court decision to abide by the tribunal order and that, until then, the old rules would apply.
In previous statements, Competition Bureau spokespersons have said its view was the 60 days have been up for some time and the order should be enforced now. Mr. Facey now says a compromise on timing has been reached.
“I think the parties – both the bureau and TREB – have now resolved that this process of getting it as soon as possible, by mid-September, is acceptable to everybody,” he said.
"TREB has told the Bureau about steps it says it will implement shortly, but there is no agreement on the time that TREB has to comply with the order. “The Bureau has consistently stated that the 60-day implementation period has expired and that TREB must immediately stop its anti-competitive practices. We continue to closely monitor TREB’s actions to ensure that the Tribunal’s order is fully implemented, so that consumers finally benefit from the competition and innovation they have been waiting for, " Jayme Albert, senior communications adviser at the Competition Bureau, said.
In the meantime, the VOW sites and their partners aren’t taking any chances. Fourwalls Digital, which manages the back-end data for several GTA brokerages, including Bosley Real Estate Ltd. and inthe6ixrealestate.com, sent out a warning about the dispute to its clients over the weekend.
“While the Fourwalls platform respects the display of sold prices only behind a VOW, TREB has not yet made these listings available to third parties in the VOW feed. A number of our broker customers have been contacted by TREB to inform them that they are in violation of their broker agreement with TREB,” an e-mail from CEO Jerome Carron said. “As a result, we will be turning off the display of sold prices until such time that TREB makes these listings available through the VOW.”
Some agents just want TREB to move on and quickly.
“It’s really frustrating, I don’t know what our board is doing, they’ve left everybody in a state of confusion,” said Desmond Brown, sales representative Royal LePage Estate Realty. “People want to know what the sold prices are; what’s so hard about giving people the information they need to make decisions?
“[TREB] really have to get out of the dark ages and realize that hoarding information is a prehistoric way of selling or dealing real estate.”
Shane Dingman