TREB Competition Tribunal gets underway

Monday, September 10th, 2012

Tony Palermo

After a lengthy wait, the Toronto Real Estate Board (TREB) is defending itself against a filing by the Competition Bureau claiming that TREB operates its MLS system using restrictive, anti-competitive practices. Given the importance of this case, there is no question both industry insiders and the general public will be following it closely.

On Aug. 24, TREB filed a last-minute constitutional challenge to the Competition Tribunal, stating that the federal tribunal has no jurisdiction over the real estate industry because it is provincially regulated. The Tribunal accepted the filing “for informational purposes only and said if members of the public wanted a copy, they should contact TREB’s legal counsel. TREB has not publically released the document.

This week the hearings began before the Competition Tribunal, a quasi-judicial adjudicative body that operates independently of all government departments (including Industry Canada, which is home to the Competition Bureau.) The Competition Tribunal’s mandate is to hear and rule on suspected violations to certain sections of Canada’s Competition Act – in this case, TREB operating its MLS system using restrictive, anti-competitive practices.

How it works

The TREB hearing is scheduled to last five weeks, though it may wrap up sooner. A tribunal hearing is similar in structure to a regular court proceeding. It typically begins with opening submissions in which the parties set out their respective positions and describe the evidence they intend to introduce. The applicant (in this case, as it is in most cases, the Commissioner of Competition) opens first and the respondent (in this case TREB) follows.

Once the opening submissions are complete, the applicant presents evidence. Witnesses will be called to answer questions and then may be cross-examined by the respondents. During the process, evidence and exhibits are introduced and filed.

Afterwards, the respondent presents its evidence.

CREA and Toronto-based real estate firm Realtysellers each have intervener status in the hearings. According to an anonymous Competition Tribunal spokesperson, it’s expected that CREA will call witnesses but that Realtysellers will not call evidence.

Among the witnesses expected to testify will be representatives from Toronto brokerages and Realosophy Realty. Both companies feature websites with unique and extensive property search capabilities.

Once both sides have had a chance to present their case, there is a final closing argument phase. This is where the parties argue and summarize their respective positions, relying on relevant case law and all of the evidence introduced during the hearing. The closing argument can’t contain any new information and can only use the evidence introduced at the Tribunal.

Once everything has been heard, the three-member panel will consider the facts and ultimately issue a decision. This can be a lengthy process. The time it takes the Tribunal’s panel to render a decision depends on several factors, including the complexity of the case. It’s expected that a decision in the TREB case will be issued in early 2013.

Members of the public can attend the TREB hearing, though at times the proceedings may go “in-camera” based on the confidential or sensitive nature of the testimony. During in-camera sessions, members of the public aren’t allowed to listen in.

Who hears the cases and issues orders?

Tribunal cases are generally heard before a three-member panel made up of both judges and lay members (who are selected from the Competition Tribunal’s pool of six judges and seven lay members.) Judicial members are appointed from the Federal Court of Canada by the Governor in Council, on the recommendation of the Minister of Justice. Lay members are appointed by the Governor in Council on the recommendation of the Minister of Industry, and provide expertise based on their individual backgrounds in economics, business, accounting, marketing and other related fields.

All of the members are selected to sit on a case by the Tribunal’s chairperson. The decision depends on their interest in the case and their availability and is only made after ensuring there are no conflicts of interest.

The TREB case is being heard before a three-member panel composed of Madam Justice Sandra J. Simpson (presiding), Mr. Justice André Scott and Mr. Henri Lanctôt, who is the lay member. A highly skilled panel, both judges bring over 35 years of legal experience each to the case. Lanctôt, a lawyer himself who was called to the Quebec Bar in 1968, brings experience in several areas including securities, corporate, commercial and resources law.

The Competition Tribunal documents can be found here.

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