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 multiple listing service of the Toronto Real Estate Board.
BETWEEN: THE COMMISSIONER OF COMPETITION Applicant - and-
THE TORONTO REAL ESTATE BOARD Respondent - and-
THE CANADIAN REAL ESTATE ASSOCIATION and REALTYSELLERS REAL ESTATE INC.
Intervenors
NOTICE OF MOTION TAKE NOTICE THAT the applicant, The Commissioner of Competition ("Commissioner 11 ), will make a motion to the Competition Tribunal on Wednesday, March 7, 2012, at a time to be determined by the Competition Tribunal at 180 Queen Street West, Toronto, Ontario.
- 2 -THE MOTION IS FOR THE FOLLOWING RELIEF: (a) an Order requiring the respondent, The Toronto Real Estate Board ("TREB") to produce to the Commissioner in readable electronic format a copy of: (i) the data in TREB's multiple listing service ("MLS") system entered for all residential properties (which shall include at minimum the fields listed in Schedule "A") for the period from January 1, 2003 (or altematively January 1, 2005 but only on the condition that TREB's expert(s) will likewise not have access to any MLS data before January 1, 2005) to Febniary 1, 2012, together with any tool, legend or instmctions that may be required to allow the Commissioner, her counsel, or her experts to use such data to prepare the Commissioner's case (the "MLS Data"); (ii) TREB's membership data (including members names, original licence or membership date, name of employing brokerage and its location) for the period January 1, 2003 to Febmary 1, 2012 ("Membership Data"); (b) an Order requiring TREB to produce the above data forthwith, and no later than 10 days after this Oi'der is granted; (c) the Commissioner's costs of this motion on an appropriate scale; and (d ) such further or other relief as counsel may request and this Honourable Court may find just.
THE GROUNDS FOR THE MOTION ARE: 1. The Commissioner requested the MLS Data and Membership Data from TRBB by letter dated December 23, 2011; 2. TRBB has not disclosed the MLS Data and Membership Data in its Affidavit of Documents and has not produced it in electronic format, or any meaningful portion thereof, to the Commissioner, contrary to its obligations under Rule 60 of the Competition Tribunal Rules; 3. TREB has admitted the existence of the MLS Data in its correspondence with the Commissioner's counsel and its ownership/control over the MLS Data in its Response to the Commissioner's application; 4. TREB has produced only hard copy versions of the Membership Data in response to the Commissioner's request for this information in electronic format. TREB has not asserted that the Membership Data does not exist in electronic format; 5. The MLS Data and Membership Data is relevant to the Commissioner's application, and the former is at the very heart of this proceeding; 6. The MLS Data is accessed electronically and used every day by thousands of real estate brokers in Toronto; 7. A copy of the MLS Data and Membership Data is necessary for the preparation of the Commissioner's case to be presented at the hearing of this matter, particularly by one or more expert witnesses; 8. Analysis of the MLS Data and Membership Data is expected to be of assistance to the Tribunal's determination of important issues in this proceeding, most notably:
-4-(a) the geographic market; (b) market shares of individual real estate brokerages and brokers; (c) the ability of real estate brokers who wish to use VOWs to compete effectively against incumbent real estate brokers; and (d) issues related to prices (commissions) as raised by TREB in its pleadings; 9. The Commissioner requires the membership data in electronic format to correlate with the MLS data that will be provided electronically. 10. The Commissioner is prepared to agree to term.s in an Order, if necessary, to address confidentiality concerns raised by TREB in relation to the MLS Data and Membership Data; 11. While TREB claims that privacy laws a;pply to the requested data, paragraph 7(3)(c) of Personal lnformatton and Protection of Electronic Documents Act (Canada) expressly permits information disclosures "to comply with rules of court relating to the production of records". Applicable provincial legislation similady permits information disclosures to comply with production obligations in civil litigation; 12. In the circumstances, it is appropriate to require to TREB to produce the MLS Data and Membership Data immediately; 13. The Competition Tribunal Rules, Rules 60, 61 and 62 and if necessary, Competition Tribunal Act, sections 8 and 9; 14. Such further or other grounds as counsel may advise.
THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the motion: (a) the affidavit of Nadia Brault, sworn on February 27, 2012; and (b) such further or other material as counsel may advise and this Honourable Tribunal may allow.
DATE: February 27, 2012
Bennett Jones LLP One First Canadian Place Suite 3400, P.O. Box 130 Toronto, ON M5X 1A4
Counsel for the Commissioner of Competition
William J, Miller Competition Bureau Legal Services Department of Justice 50 Victoria Street Gatineau, QC KIA OC9
Counsel for the Commissioner of Competition COPY TO: Donald S. Affleck Renai Williams Affleck Greene McMurtry LLP 365 Bay Street, Suite 200 Toronto, ON MSH 2Vl
Counsel for the Respondent
AND TO: Sandra A. Forbes George Addy Jam es Dinning Davies Ward Phillips & Vineberg LLP One First Canadian Place l 00 King Street West Suite 4400, Box 63 Toronto, ON M5X lBl
Counsel for the Canadian Real Estate Association AND TO: Chris Hersch Cassels Brock & Blackwell LLP 2100 Scotia Plaza 40 King Street West Toronto, Ontario MSH 3C2
Counsel for Realtysellers Real Estate Inc. AND TO: The Registrar Competition Tribunal Thomas D' Arey McGee Building 90 Sparks Street, Suite 600 Ottawa, ON KlP 5B4
SCHEDULE A - MLS FIELDS 1. MLS Number 2. Sold/Leased Price 3. Last Status 4. % Sold (or Leased) Price to List Price 5. Days on Market 6. Bathroom Total 7. Sold/Leased Date 8. Closing Date 9. Date Last Updated 10. Original Price 11. Co-operating Brokerage 12. Co-operating Salesperson 1 13. Co-operating Salesperson 2 14. Escape Clause Flag (YIN) 15. Escape Clause (Hours) 16. Sold/Leased Conditional (Condition- text box) 17. Sold/Leased Conditional Expiry Date 18. Leased Term (text box) 19.PIN# 20. Area 21. Municipality 22. Community 23. Out of Area Municipality 24. Street Number 25. Street Name 26. Street Abbreviation 27. Street Direction (East, North, South, West) 28. Apt/Unit 29. Postal Code 30. Fronting On (NSEW) 31. Legal Description 32. Lot Front 33. Lot Depth 34. Lot Size Code 3 5. Lot Irregularities 36. Acreage 37. Zoning 38. Directions/Cross Streets 39. Map Page 40. Map Column 41. Map Row WSLegal\051654\00014\7532456vl
42. Province 43. List Price 44. Taxes 45. Tax Year 46. Assessment 47 . Assessment Year 48. Contract Date 49. Expiry Date 50. Possession Date 51. Holdover Days 52. Type 53. Style 54. Exterior 55. Additional Monthly Fees 56 . Garage Type 57. Garage Spaces 58. Drive 59. Parking Spaces 60. Pool 61. Water 62. Sewers 63. Retirement 64. Physically Handicapped Equipped 65. Special Designation 66. Approximate Age 67. Approximate Square Footage 68. Property Features 69. Other Structures 70. Water Supply Types 71. Farm/Agriculture 72. Waterfront 73. Utilities Cable 74. Utilities Hydro 75. Utilities Sewers 76. Utilities Gas 77. Utilities Municipal Water 78. Utilities Telephone 79. Rooms 80. Rooms+ (below grade) 81. Bedrooms 82. Bedrooms + (below grade) 83. Kitchens 84. Kitchens+ (below grade)
85. #Washrooms I 86. #Pieces Washroom 1 87. Level Washroom 1 88. #Washrooms 2 89. #Pieces Washroom 2 90. Level Washroom 2 91. #Washrooms 3 92. #Pieces Washroom 3 93. Level Washroom 3 94. #Washrooms 4 95. #Pieces Washroom 4 96. Level Washroom 4 97. # Washrooms 5 98. #Pieces Washroom 5 99. Level Washroom 5 100. Family Room 10 I. Basement 102. Fireplace/Stove I 03. Heat Source 104. Heat Type 105. Air Conditioning 106. UFFI 107. Central Vac WSLegal\051654\00014\7532456vl
108. Laundry Level 109. Elevator/Lift 110. Remarks for Clients 111. Extras 112. Listing Brokerage Name 113. List Brokerage Phone # 114. List Brokerage Fax# 115. Salesperson 1 116. Salesperson 1 Phone 117. Salesperson 2 118. Salesperson 2 Phone 119. Commission Co-Op Brokerage 120. Seller Property Information Statement 121. Energy Certification 122. Certification Level 123. Green Property Information Statement 124. Permission To Advertise 125. Distribute To Internet Portals 126. Display Address on Internet 127. Contact After Expired
THE COMPETITION TRIBUNAL WSLe gnl\05 16541 00014 THE COMMISSIONER OF COMPETITION \7441 412v4 Applicant - and -
THE TORONTO REAL ESTATE BOARD Respondent - and -
THE CANADIAN REAL ESTATE ASSOCIATION and REALTYSELLERS REAL ESTATE INC.
Intervenors
NOTICE OF MOTION BENNETT JONES LLP Suite 3400, P.O. Box 130 One First Canadian Place Toronto, ON MSX 1A4
John F. Rook, Q.C. (LSUC #13786N) Tel: (416) 777-4885 Andrew D. Little (LSUC #34768T) Tel: (416) 777-4808 Emrys Davis (LSUC #57391B) Tel: (416) 777-6242 Fax: (416) 863-1716
Counsel for the Commissioner of Competition