Federal Court of Appeal dismisses challenge to Competition Tribunal ruling in Toronto Real Estate Board



The Federal Court of Appeal (FCA) has confirmed a Competition Tribunal decision concerning the control of Multiple Listing Service (MLS) data by the Toronto Real Estate Board (TREB), delivering a victory to the Commissioner of Competition in the long-running dispute.

In its December 2017 decision in Toronto Real Estate Board v Canada (Commissioner of Competition),1 the Court dismissed TREB’s appeal of a 2016 Competition Tribunal (Tribunal) decision concluding that TREB policies preventing its member-brokers from accessing certain MLS property listing data for their virtual office websites constituted an abuse of TREB’s dominant position over residential real estate brokerage services in the Greater Toronto Area, contrary to section 79 of the Competition Act (the Act). The Commissioner successfully argued that such data was an input into a new form of dynamic competition and that TREB restrictions prevented the emergence of innovative, Internet-based business models.

While the FCA decision on TREB’s appeal does not break much new ground, it does provide insights into how various elements of the abuse of dominance provision are to be interpreted, particularly in an access to data context. Competition law access-to-data cases are likely to become increasingly common given the critical role data plays in the economy as an input to other products and a product in its own right. In fact, there have been a number of cases addressing refusal to provide access,2 and this issue is also addressed in the Competition Bureau’s draft discussion paper released in September 2017 on “Big Data and Innovation: Implications for Competition Policy in Canada”3 (a paper that follows similar efforts by competition authorities in Europe). The FCA’s decision also considers the interface between privacy, competition and copyright law.

Background and Procedural History

The FCA’s decision concerns MLS, a database of current and previously-available property listings operated across Canada by local real estate boards. Copyright in MLS is owned by the Canadian Real Estate Association (CREA), which intervened at the FCA in support of TREB. In the Greater Toronto Area, TREB makes the MLS available to its broker-members through an electronic data feed which those brokers, in turn, use to populate their websites, known as “virtual office websites” or “VOWs.”

In May 2011, the Commissioner challenged TREB’s VOW policies restricting specific listing information from dissemination on the MLS’s data feed, including old and “pending sold” homes, withdrawn listings and broker commission details. The Commissioner argued the VOW policies impeded the ability of “innovative” brokers with VOW-centred business models from competing.

In an initial decision in 2013, the Tribunal dismissed the Commissioner’s application, finding that since TREB did not compete with its members in the real-estate brokerage market, it could not commit the “anti-competitive acts” required to be demonstrated as an element of abuse of dominance.4 In February 2014, the FCA rejected that interpretation and reversed the Tribunal’s decision.5 In redetermination hearings in 2016, the Tribunal granted the Commissioner’s application.6 TREB then appealed to the FCA.

The FCA’s Decision

TREB challenged the Tribunal’s 2016 findings on three principal grounds:

  • The Tribunal inappropriately relied on qualitative evidence in making its assessment of impacts on competition, contrary to the Supreme Court’s guidance in its 2015 ruling in Tervita Corp. v Canada (Commissioner of Competition)7;
  • The VOW policies’ exclusion of data from the MLS feed was done for legitimate privacy reasons, not with anti-competitive intent; and
  • TREB’s exercise of copyright in MLS could not, pursuant to section 79(5) of the Act, constitute an anti-competitive act.

(a) Reliance on qualitative evidence

In response to TREB’s first claim, the FCA held that the Tervita case had only insisted that the Commissioner produce evidence on quantifiable anti-competitive effects in the specific context of the “efficiencies defence” under section 96 of the Act. That defence relates to the Commissioner’s powers to review mergers, not anti-competitive conduct by a “dominant” firm (specifically, the defence shields an anti-competitive merger from the Act’s remedies if it can be shown that gains in efficiency “will be greater than, and will offset” the effects of any prevention or lessening of competition).

The Tribunal also refused to draw an adverse inference against the Commissioner for his failure to adduce empirical evidence relating to other geographic markets (the U.S. and Nova Scotia) where “full information” VOWs existed. The FCA concluded that doing so would be akin to dictating the Commissioner’s presentation of his case.

In coming to its conclusions, the FCA appeared to agree with the Tribunal’s assessment of the difficulties of quantification for a case grounded on harm to dynamic competition or innovation:

… It is important to point out that the Tribunal understood the difference in nature between quantitative and qualitative evidence and that it recognized that it was more difficult for the Commissioner to prove his case on the basis of mostly qualitative evidence. The Tribunal indicated that in a case like the one before it, which pertained mostly to dynamic competition, it was inevitable that the Commissioner would have to rely on qualitative evidence in the form of business documents, witness statements, and testimonies, adding, however, that it remained the Commissioner’s burden to prove his case on a balance of probabilities.

Beyond its dismissal of this aspect of TREB’s appeal, the Tribunal found that it was not required to address certain factual issues raised by TREB given its failure to seek leave to challenge questions of fact.

(b) Privacy as a business justification

With respect to privacy, TREB argued that the Tribunal had failed to accept that its efforts to comply with privacy laws (specifically the Personal Information Protection and Electronic Documents Act (PIPEDA)) could constitute a legitimate business justification for the VOW policies. If TREB’s argument had been accepted, it would have countered the Commissioner’s characterization that the refusal to supply the data constituted an “anti-competitive act” under the Act’s dominance provision.

The FCA upheld the Tribunal’s finding that TREB’s business justification “simply did not mesh with the evidence,” noting: the disputed data’s wide use by those with data feed access; TREB’s inconsistent enforcement of its privacy rules; and the lack of evidence that the VOW policies had any privacy purpose (including the absence of evidence from its Chief Privacy Officer or Chief Information Officer). The FCA also upheld the Tribunal’s finding that TREB’s Listing Agreement (on which TREB had sought legal advice) contained sufficient consent to be compliant with the statute without the VOW policies. While the FCA agreed with TREB that the Tribunal erred to the extent it required privacy to be the “original or seminal motivation” of the impugned conduct to provide a defence, it found the Tribunal’s conclusions on the lack of a privacy nexus “compelling.”

(c) Copyright in the MLS

Finally, the FCA dismissed TREB and CREA’s argument that TREB’s copyright in MLS allowed it to avail itself of section 79(5) of the Act, which states that an act “engaged in pursuant only to the exercise” of certain intellectual property (IP) rights is not an anti-competitive act. Citing the Tribunal’s finding that the VOW policies served to “insulate members from new entrants and new forms of competition,” the FCA held that TREB had gone beyond “only” exercising IP rights, commenting as follows on the interplay between those rights and Canada’s competition law framework:

Parliament clearly signaled, through the use of the word "only", to insulate intellectual property rights from allegations of anti-competitive conduct in circumstances where the right granted by Parliament, in this case, copyright, is the sole purpose of exercise or use. Put otherwise, anti-competitive behaviour cannot shelter behind a claim of copyright unless the use or protection of the copyright is the sole justification for the practice.

The FCA found that the conditions TREB attached to the use of the data—rather than aiming to protect its copyright—were instead designed to insulate its members from new entrants and forms of competition in the residential real estate brokerage market. In addition, the FCA held that TREB processed MLS information through a “mechanical exercise” that was insufficient to meet the originality standards required for a copyright claim.

Broader Implications

While not a radical decision, TREB does provide some useful guidance about both the Commissioner and the respondent’s evidentiary burden in an abuse of dominance case.

The FCA refused to apply the Tervita merger case’s requirement for quantification of the harm to competition in the dominance context. Following its major defeat in Tervita, the Commissioner publicly indicated that the Competition Bureau “will prioritize the use of advanced econometric analyses given the SCC’s direction that anti-competitive effects should be quantified wherever possible” and referenced “further in-house resources” being dedicated to that end. In contrast to Tervita, the FCA’s decision exhibits a concern for preserving the Commissioner’s leeway to pursue enforcement targeted at non-price or dynamic dimensions of competition—and its holdings are significant in the context of the Commissioner’s recent focus on innovation.

For firms wishing to shield proprietary data on the basis of privacy rules, the FCA’s decision establishes that while privacy need not be shown to be the “original or seminal motivation”, there must be sufficient evidence (through corporate records, testimony and consistent conduct, for example) to support privacy as the reason for a refusal to supply. Privacy claims cannot merely be ex post attempts to rationalize the “predatory, disciplinary or exclusionary” behaviour prohibited by the Act.

Given the rise of the data-driven economy, the interface between privacy and competition law may be growing in significance, and future case law may be needed to clarify the balance between them. Canadian authorities have yet to follow their European counterparts who have shown a higher degree of interest in, and concern about, the privacy/competition interface to this point.

1. 2017 FCA 236.
2. For example, in 2016, the Competition Bureau investigated whether contractual restrictions imposed by TMX Group (TMX) on investment dealers preventing them from sharing private market data with third parties without TMX’s written consent constituted an anti-competitive act that was likely to cause a substantial prevention of competition in a market under the abuse of dominance provision of the Act. Aequitas Innovations Inc. (Aequitas) claimed that it was unable to develop an innovative product without access to such data. However, the Bureau concluded that sufficient future competition from Aequitas’ new product would be unlikely to materialize as even without TMX’s contractual restrictions, Aequitas would not have been able to obtain enough data from investment dealers to develop a competitive product.
3. See online.
4. The Commissioner of Competition v The Toronto Real Estate Board, 2013 Comp Trib 9.
5. The Commissioner of Competition v The Toronto Real Estate Board, 2014 FCA 29.
6. The Commissioner of Competition v The Toronto Real Estate Board, 2016 Comp Trib 6.
7. 2015 SCC 3.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Dentons | Attorney Advertising

Written by:


Dentons on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at www.jdsupra.com) (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at privacy@jdsupra.com.

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at privacy@jdsupra.com or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to privacy@jdsupra.com. We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to privacy@jdsupra.com.

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at: privacy@jdsupra.com.

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at www.jdsupra.com) (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit legal.hubspot.com/privacy-policy.
  • New Relic - For more information on New Relic cookies, please visit www.newrelic.com/privacy.
  • Google Analytics - For more information on Google Analytics cookies, visit www.google.com/policies. To opt-out of being tracked by Google Analytics across all websites visit http://tools.google.com/dlpage/gaoptout. This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit http://www.aboutcookies.org which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at: privacy@jdsupra.com.

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.