CT-2011/003 THE COMPETITION TRIBUNAL IN THE MATTER OF the Competition Act, R.S.C. 1985, c. C-34, as amended; IN THE MATTER OF an application by the Commissioner of Competition pursuant to section 79 of the Competition Act
AND IN THE MATTER OF certain rules, policies and agreements relating to the residential multiple listing service of the Toronto Real Estate Board.
BETWEEN: THE COMMISSIONER OF COMPETITION Applicant AND
THE TORONTO REAL ESTATE BOARD
REQUEST FOR LEAVE TO INTERVENE ON BEHALF OF THE CANADIAN REAL ESTATE ASSOCIATION
The Canadian Real Estate Association ("CREA") requests leave of the Competition Tribunal under section 9(3) of the Competition Tribunal Act, R.S.C. 1985, c.19, as amended, to intervene in this proceeding. In support of its request, CREA relies on the Affidavit of its Chief Executive Officer, Mr. Gary Simonsen, sworn August 31, 2011.
Respondent
-2-Name and Address of Proposed Intervener: The Canadian Real Estate Association 200 Catherine Street, 6th Floor Ottawa, Ontario K2P 2K9
Paul M. Feuer Senior Competition Counsel Tel: 613.237.7111 Fax: 613.234.2567 E-mail: pfeuer@crea.ca
Address for Service: Davies, Ward Phillips & Vineberg LLP 1 First Canadian Place 100 King Street West Suite 4400, Box 63 Toronto, Ontario M5X 181
Sandra A. Forbes Tel: 416.863.5574 Fax: 416.863.0871 Email: sforbes@dwpv.com
George Addy Tel: 416.863.5588 Fax: 416.863.0871 Email: gaddy@dwpv.com
James Dinning Tel: 416.367.7462 Fax: 416.863.0871 Email: jdinning@dwpv.com
The Matters In Issue That Affect CREA And CREA's Distinct Perspective 1. CREA seeks to intervene in the Commissioner's Amended Application pursuant to s. 79 of the Competition Act for an Order (i) prohibiting the Respondent from regulating or restricting its members' use of information in the Respondent's MLS® System to offer brokerage services over the Internet, including through a Virtual Office
- 3 -Website ("VOW") and (ii) directing the Respondent to implement such measures as are deemed necessary to ensure the operation of VOWs or similar services by the Respondent's members. 2. CREA, one of Canada's largest single-industry trade associations, represents over 100,000 REAL TORS® working through approximately 100 real estate boards and associations across Canada. As the voice for the Canadian real estate industry, CREA regularly represents its members on national issues, including competition matters. CREA has also been at the forefront of the Canadian real estate industry's response to the challenges and opportunities created by the Internet. For more than a decade, CREA has studied the potential use of the Internet to provide new and innovative services and has devised several proposals and policies to meet this objective. Indeed, as recently as 2008-2010, CREA was engaged with the Competition Bureau ("Bureau") in discussions about concerns raised by the Bureau with respect to VOWs in Canada. 3. CREA also owns the Multiple Listing Service® trademark, the MLS® trademark and the associated logos (the "MLS® Trademarks") and is a co-owner of the REAL TOR® and REAL TORS® trademarks and the associated logos (the "REAL TOR® Trademarks"). The MLS® and REAL TOR® Trademarks are an assurance of integrity and identify a certain standard of brokerage services and professionalism. 4. As the representative of the Canadian real estate industry, CREA has a direct and significant interest in the competitiveness, efficiency and reliability of that industry, all of which are put in issue by the matters raised in this proceeding.
-4-5. Further, the Tribunal's decision in this proceeding will have national implications for the real estate industry and therefore will directly affect all of CREA's members. 1 While the Order requested by the Commissioner in the Amended Application is broad and imprecise, any finding made, or order issued, in respect of VOWs and other Internet vehicles will directly affect the ability and manner in which CREA's members across Canada can and will provide services to their customers using the Internet. 6. In addition, CREA has a direct interest in this proceeding by virtue of its trademark rights in the MLS® and REAL TOR® Trademarks. CREA has been diligent to ensure that those Trademarks are associated with a standard of professionalism and with the provision of accurate and up-to-date information. CREA therefore has a direct interest in ensuring that any use on the Internet of information sourced from a MLS® System is subject to sufficient rules and policies that protect those standards. 7. Lastly, as a key participant in the Canadian real estate industry, CREA will bring a perspective to the matters in dispute in this proceeding that will be relevant, of assistance to the Tribunal and distinct from the perspectives provided by the Commissioner and the Respondent (individually, a "Party", and together, the "Parties"). 8. CREA's extensive involvement in the Canadian real estate industry regarding both competition matters and the development of innovative Internet services for use in the industry places CREA in a unique position to assist the Tribunal in its consideration CREA relies on the decisions of the Tribunal in Canada (Commissioner of Competition) v. Visa Canada Corp., [2011] C.C.T.D. No. 2 (QL) at para. 8, 18, 41 and 51; Canada (Director of Investigation and Research) v. D&B Companies of Canada Ltd., [1994] C.C.T.D. No. 19 (QL) and Canada (Director of Investigation and Research) v. Bank of Montreal, [1996] C.C.T.D. No. 1 at para. 7, where the Tribunal concluded that an industry association was directly affected because the matters in issue would directly affect the persons they represented, and commented on the efficiencies of having industry associations intervene.
- 5 of the relevant issues, including the effectiveness of the remedies proposed by the Commissioner. 2 In particular, CREA is uniquely positioned to provide the Tribunal with a valuable perspective in respect of (i) the operation of VOWs and similar Internet and data sharing vehicles in the Canadian marketplace, (ii) the specific issues that are triggered by the use of Internet and data sharing vehicles (such as, privacy, security and terms of use), (iii) how the Order sought by the Commissioner will impact the Canadian real estate industry as a whole, (iv) the competitive effects of VOWs and other Internet and data sharing services and (v) the appropriateness of the relief sought by the Commissioner. The Competitive Consequences Arising From The Matters In Issue On Which CREA Wishes To Make Representations
9. CREA supports the use of new and innovative business models, including the provision by REAL TORS® of relevant, accurate and up-to-date information to customers through the Internet in a manner which protects and preserves the integrity and quality associated with its Trademarks, appropriately addresses privacy concerns and meets the requirements of relevant provincial and federal legislation. 10. Any findings or orders that the Tribunal may make regarding the provision of Internet and data sharing services, such as VOWs, will impact the competitiveness, efficiency and reliability of the Canadian real estate industry. Accordingly, the matters at issue need to be considered carefully, based on all relevant information and perspectives.
2 Canada (Commissioner of Competition) v United Grain Growers (2002), 19 C.P.R. (4th) 157 at para. 13
- 6 -11. CREA wishes to make representations on the effect of VOWs and other data sharing vehicles on competition in the Canadian real estate industry. In particular, if granted leave to intervene, CREA intends to make submissions on the appropriate definitions of product and geographic market, the purpose, use of and likely competitive effects of VOWs and other data sharing vehicles, and the suitability and/or effectiveness of the remedies requested by the Commissioner. Those submissions will cover the appropriate relationship between VOWs and traditional "bricks and mortar" services, whether the Order requested will lead to innovative services and reduced fees for consumers as alleged by the Commissioner, and the effect of the availability of a variety of Internet data sharing vehicles on competition in the market. 12. As evident from the discussion above, the matters in this proceeding that affect CREA are within the Tribunal's mandate, and CREA's representations will be relevant to the issues raised by the Commissioner in this proceeding. Party Whose Position CREA Intends To Support 13. If granted leave to intervene, CREA intends to support the Respondent's position from its different perspective as the national representative of the Canadian real estate industry. The Official Language To Be Used By CREA 14. English. CREA's Proposed Participation In The Proceeding 15. CREA requests leave to intervene with respect to any issues that touch upon or relate to the use of the Internet to provide real estate services to customers in Canada
- 7 and to participate with respect to any orders sought that affect CREA's members, on the following terms: (a) to review any discovery transcripts and access any discovery documents of the Parties, but not to participate directly in the discovery process or be subject to documentary or oral discovery by any Party; (b) to lead relevant, non-repetitive viva voce evidence at the hearing of the Amended Application on the issues raised by the Parties; (c) to file expert evidence within the scope of its intervention in accordance with the procedures set out in the Competition Tribunal Rules, Rules 77 and following; (d) to cross-examine witnesses at the hearing of the Amended Application to the extent that such cross-examination is not repetitive of the cross-examinations conducted by the Parties; (e ) to make arguments at the hearing of the Amended Application and at any pre-hearing motions, case conferences, or scheduling conferences, on issues raised by the Parties, but not to introduce any new issues; and (f) to make submissions on any proposed remedy. 16. If leave to intervene is granted, CREA undertakes to conduct and coordinate its intervention so as not to be repetitive or duplicative of the representations of the Parties or of other intervenors to whom leave may be granted.
- 8 -17. If leave to intervene is granted, CREA would not seek costs, and requests that it not be made liable for the costs of any Party or other intervenor. 18. CREA undertakes to comply with the Competition Tribunal Rules and with any directions of the Tribunal with respect to the conduct of this proceeding. 19. CREA reserves its right to request further terms with respect to its intervention as it may advise and as the Tribunal may permit as the matter proceeds. CREA Requests An Oral Hearing Of This Motion Only If Any Party Opposes 20. If any of the Parties opposes CREA's motion to intervene, CREA respectfully requests an oral hearing of its motion. DATED at Toronto, Ontario this 31 day of August, 2011 .bi"''s, l.:>c>4. 1'..J.JL.,:S r lJ:iu~S Lt..f
Davies, Ward Phillips & Vineberg LLP 1 First Canadian Place 100 King Street West Suite 4400, Box 63 Toronto, Ontario M5X 181
Sandra A. Forbes Tel: 416.863.5574 Fax: 416.863.0871 Email: sforbes@dwpv.com
George Addy Tel: 416.863.5588 Fax: 416.863.0871 Email: gaddy@dwpv.com
- 9 -James Dinning Tel: 416.367.7462 Fax: 416.863.0871 Email: jdinning@dwpv.com
Lawyers for Proposed Intervenor, CREA TO: Bennett Jones LLP One First Canadian Place Suite 3400, P.O. Box 130 Toronto, Ontario M5X 1A4
John F. Rook Andrew D. Little
AND TO: Competition Bureau Legal Services Department of Justice 50 Victoria Street Gatineau, Quebec K1A OC9
Roger Nassrallah Lawyers for the Applicant
AND TO: Affleck Green McMurty 365 Bay Street, Suite 200 Toronto, Ontario M5H 2V1
Donald S. Affleck Renai E. Williams Michael I. Binetti Lawyers for the Respondent
AND TO: The Registrar Competition Tribunal Thomas D'Arcy McGee Building 90 Sparks Street, Suite 600 Ottawa, Ontario K1P 5B4
File No. CT-2011-003 THE COMPETITION TRIBUNAL THE COMMISSIONER OF COMPETITION Applicant AND THE TORONTO REAL ESTATE BOARD Respondent
Request for Leave To Intervene by CREA Davies, Ward Phillips & Vineberg LLP 1 First Canadian Place 100 King Street West Suite 4400, Box 63
Toronto, Ontario M5X 181
Sandra A. Forbes Tel: 416.863.5574 Fax: 416.863.0871 Email: sforbes@dwpv.com George Addy Tel: 416.863.5588 Email: gaddy@dwpv.com James Dinning Tel: 416.367.7462 Email: jdinning@dwpv.com
Lawyers for Proposed Intervenor, CREA