CT-2011-003 COMPETITION TRIBUNAL IN THE MATTER OF the Competition Ac~ 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: COMMISSIONER OF COMPETITION Applicant
AND THE TORONTO REAL ESTATE BOARD Respondent
RESPONSE OF THE TORONTO REAL ESTATE BOARD TO THE REQUEST OF THE CANADIAN REAL ESTATE ASSOCIATION FOR LEAV E TO INTERVENE
1. The Toronto Real Estate Board ("TREB") supports the request of The Canadian Real Estate Association ("CREA") for leave to intervene. 2. Each of the matters on which CREA proposes to intervene are within the scope of the Tribunal's consideration and are relevant to issues specifically raised by the Commissioner of Competition ("Commissioner") in this proceeding. 3. CREA is directly affected by the issues raised in the Commissioner's Amended Notice of Application, including by virtue of its status as the owner of the Multiple Listing
Service® trademark and the MLS® trademark, each of which is licenced from it by TREB and used in relation to the operation of the TREB MLS®. Any relief granted that affects the value of the Multiple Listing Service® and MLS® marks, therefore directly affects the rights and interests of CREA. Affidavit of Gary Simonsen, paras. 19, 23 & 33 4. TREB submits that CREA's long-standing involvement in the real estate industry throughout Canada and its extensive expertise in relation to the use of the internet in that industry places it in a position to offer a unique and distinct perspective to the Tribunal on the matters in issue and the efficacy and applicability of the relief proposed by the Commissioner. CREA Request to Intervene, paras. 2 & 8 Affidavit of Gary Simonsen, paras. 19, 23 & 33 5. TREB submits that CREA is uniquely placed to assist the Tribunal on a matter critical to the Commissioner's application: whether the operation of virtual office websites would be likely to increase competition substantially in the supply of residential real estate brokerage services. 6. The Commissioner directly raises the expenences of brokers and brokerages in jurisdictions outside of Ontario as supporting the thesis that virtual office websites "would impose competitive discipline on brokerages that currently operate in the relevant market", "allow home searches to be conducted in a more efficient manner", "encourage innovation and increased quality of service", "allow brokerages to reduce their costs" and "pass these cost savings on to their customers". 2
Amended Notice of Application, paras. 6, 8, 9, 58, 62, 63 & 64 7. As the only national association of REALTORS®, TREB submits that CREA is the most efficient source to address the experience of brokers and brokerages across Canada with virtual office websites and similar data-sharing initiatives. CREA's Request to Intervene, paras. 35 to 38, 43, 44 & 45 8. TREB takes no position on the terms of intervention sought by CREA. 9. Unless opposed by the Commissioner, TREB does not consider a hearing needs to be held to determine CREA's Request for Leave to Intervene.
DATED AT Toronto, this 14th day of September, 2011. Affleck Greene McMurtry LLP 365 Bay Street Suite 200 Toronto, Ontario M5H2V2
Donald S. Affleck Q.C. Phone: (416) 360 1488 Fax: (416) 360 5960 Email: dsaffleck@agmlawyers.com
Renai E. Williams Phone: (416) 360 2668 Email: rwilliams@agmlawyers.com
Michael Binetti Phone: (4 16) 360 0777 Email: mbinetti@agmlawyers.com
Counsel for The Toronto Real Estate Board
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To: Sandra A. Forbes George Addy Jame s Dinning Davies Ward Phillips & Vineberg LLP 1 First Canadian Place Suite 4400, Box 63 Toronto, Ontario M5X lBl
Counsel for The Canadian Real Estate Association And To: John F. Rook Andrew D. Little Bennett Jones LLP One First Canadian Place Suite 3400, P.O. Box 130 Toronto, Ontario M5X 1A4
Counsel for the Applicant And To: Roger N assrallah Competition Bureau Legal Services Department of Justice 50 Victoria Street Gatineau, Quebec K1AOC9
Counsel for the Applicant And To: Mark Nicholson Gowling Lafleur Henderson LLP 1 First Canadian Place 100 King Street West Toronto, Ontario M5X 1G5
Counsel for Realtysellers Real Estate Inc. And To: The Registrar Competition Tribunal Thomas D 'Arey McGee Building 90 Sparks Street, Suite 600 Ottawa, Ontario KlP 5B4
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CT-2011-003 COMPETITION TRIBUNAL THE COMMISSIONER OF COMPETITION Applicant - and-
THE TORONTO REAL ESTATE BOARD Respondent
RESPONSE OF THE TORONTO REAL ESTATE BOARD TO REQUEST OF THE CANADIAN REAL ESTATE ASSOCIATION FOR LEAVE TO INTERVENE
AFFLECK GREENE McMURTRY LLP 365 Bay Street, Suite 200 Toronto, Ontario M5H 2Vl
Donald S. Affleck, Q.C. Tel: (416) 360-1488 Email: dsaffleck@agmlawyers.com Renai E. Williams Tel: (416) 360-0668 Email :rwilliams@agmlawyers.com Michael I. Binetti Tel: (416) 360-0777 Email:mbinetti@agmlawyers.com
Counsel for The Toronto Real Estate Board