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
NOTICE OF MOTION TAKE NOTICE THAT The Toronto Real Estate Board will make a motion to the Competition Tribunal, at a date, time, location and in a manner directed by the Competition Tribunal.
THE MOTION IS FOR: 1. An order removing Mark Nicholson and the firm Gowling Lafleur Henderson LLP as solicitors of record for Realtysellers Real Estate Inc. with respect to the above-noted proceedings;
2. An order enjoining Mark Nicholson and the firm Gowling Lafleur Henderson LLP from advising Realtysellers Real Estate Inc. or any related party or entity (including Mr.
Lawrence Dale) with respect to any matters arising from or related to the above-noted proceedings;
3. The costs of the motion on a solicitor and client basis; and 4. Such further and other relief as counsel may request and the Tribunal may permit. THE GROUNDS FOR THE MOTION ARE: 1. During the period from approximately 2001 to mid-2007, Gowling Lafleur Henderson LLP ("Gowlings") was retained by The Toronto Real Estate Board ("TREB") as TREB's general counsel. During the period of the retainer, TREB disclosed confidential information to Gowlings relevant to subject matters in issue in the Application.
2. Should Realtysellers be granted leave to intervene, Realtysellers intends to support generally the position of the Commissioner of Competition, a position adverse to TREB.
3. Gow lings is in an actual or perceived conflict of interest. 4. Accepting Realtysellers' retainer has placed Gow lings in breach of its duty of loyalty to TREB.
5. Rules 34(1) and 83 to 88 (inclusive) of the Competition Tribunal Rules. 6. Rules 123, 400 and 401 of the Federal Court Rules. 7. Rules 2.04 and 2.05 of the Rules of Professional Conduct of the Law Society of Upper Canada.
8. Such further and other grounds as counsel may advise and the Tribunal may permit. 2
THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the motion:
1. The affidavit of Donald John Richardson, sworn September 13, 2011 and exhibits thereto.
2. The pleadings herein; 3. Such further and other materials as counsel may advise and the Tribunal may permit. DATED AT Toronto, this 13th 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: (416) 360 0777 Email: mbinetti@agmlawyers.com
Counsel for The Toronto Real Estate Board
To: Gowling Lafleur Henderson LLP 1 First Canadian Place 100 King Street West Toronto, Ontario M5X 1G5
Attention: Michael S. F. Watson
And To: Mark Nicholson Gowling Lafleur Henderson LLP 1 First Canadian Place 100 King Street West Toronto, Ontario M5X 1G5
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
And To: Roger N assrallah Competition Bureau Legal Services Department of Justice 50 Victoria Street Gatineau, Quebec K1AOC9
Counsel for the Applicant
And 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: The Registrar Competition Tribunal Thomas D 'Arey McGee Building 90 Sparks Street, Suite 600 Ottawa, Ontario KIP 5B4
CT-2011-003 COMPETITION TRIBUNAL THE COMMISSIONER OF COMPETITION Applicant - and-
THE TORONTO REAL ESTATE BOARD Respondent
NOTICE OF MOTION 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