The Toronto Real Estate Board v. Commissioner of Competition, 2017 FCA 236

Justice Nadon; Justice Near; Justice Rennie - 2017-12-01

Read full decision. Summary prepared by Alan Macek:

This is a statutory appeal from two decisions of the Competition Tribunal (the Tribunal) which held that certain information sharing practices of the Toronto Real Estate Board (TREB) prevented competition substantially in the supply of residential real estate brokerage services in the GTA. ... TREB maintains a database of information on current and previously available property listings in the GTA. TREB makes some of this information available to its members via an electronic data feed, which its members can then use to populate their websites. However, some data available in the database is not distributed via the data feed, and can only be viewed and distributed through more traditional channels. The Commissioner of Competition says this disadvantages innovative brokers who would prefer to establish virtual offices, resulting in a substantial prevention or lessening of competition in violation of subsection 79(1) of the Competition Act. TREB says that the restrictions do not have the effect of substantially preventing or lessening competition. Furthermore, TREB claims the restrictions are due to privacy concerns and that its brokers’ clients have not consented to such disclosure of their information. TREB also claims a copyright interest in the database it has compiled, and that under subsection 79(5) of the Competition Act, the assertion of an intellectual property right cannot be an anti-competitive act. For the reasons that follow, we would dismiss the appeal. ... Subsection 79(5) seeks to protect the rights granted by Parliament to patent and copyright holders and, at the same time, ensure that the monopoly and exclusivity rights created are not exercised in an anti-competitive manner. The language of subsection 79(5) is unequivocal. It does not state, as is contended, that any assertion of an intellectual property right shields what would otherwise be an anti-competitive act. ... After reviewing the MLS database, the Tribunal noted the “absence of a creative element” Further, while the Tribunal cited CCH for the correct originality test in paragraph 733, it then relied on Tele-Direct to invoke and apply the element of creativity which, post-CCH, is not the correct test (CCH at para. 25). We agree with the appellants on this point. However, in view of the Tribunal’s findings of fact, applying the correct test, we reach the same result. ... For the reasons above, we would dismiss the appeal with costs. (Thanks to Kevin Wright for a copy of the decision)

Decision relates to:



Canadian Intellectual Property