Stop the Madness! TREB: Please Don’t Appeal

The Federal Court of Appeals has just dismissed the appeal by the Toronto Real Estate Board (TREB) against the Competition Bureau Tribunal. [You can read the 75-page judgement here]

TREB was appealing a ruling that found it guilty of being anti-competitive in preventing members from publishing sold data online.

Translation: We’re one step closer to seeing sold prices publicly in Toronto. 

While I don’t want to rehash years of ugly legal battles, here’s what you need to know:

• 2003/2004 & 2009/2010: Big court battles between Lawrence Dale/Realty Sellers and TREB over access to MLS and sold data
• May 2011: The Competition Bureau files an application with the Tribunal challenging “restrictions TREB was imposing on members’ use of data in the MLS” (in other words, they weren’t letting members post sold data online)
• 2013: Case dismissed. Competition Bureau appeals to the Federal Court of Appeal.
• 2014: Tribunal ordered to reconsider.
• 2016: Competition Tribunal rules that TREB was stifling competition and innovation by preventing members from creating new online services and tools using home sales data. TREB appeals.
• 2017: The Federal Court of Appeals finds that:
  1. the testimony in the original hearing was adequate
  2. TREB’s goal of keeping sold data secret was not out of concern for consumer privacy and;
  3. the information contained in the MLS database does not meet the requirements to be considered copyrighted information.

REALTORS against the public distribution of the data have argued it from a few different angles:

• We paid for the MLS system, so that data belongs to us.
• No other organization is forced to make their databases public.
• Buyers and Sellers don’t want their information public – we’re protecting them.
• Displaying this information publicly goes against federal privacy legislation (PIPEDA)
• Making sold data public is OK – but not the prices for properties that haven’t yet closed. Unless it’s a REALTOR telling you that information personally, then that’s OK. But it’s not OK for a REALTOR to share that info online.

In March 2015, I wrote a blog We Need More Transparency in Real Estate (Not Less). I’d just received a Cease and Desist letter that threatened to cut off my access to MLS, because I was sharing sold data over email. In that blog, I shared my opinions about sold data, and I believe it even more so today:

• We believe in the public’s right to access information to make them better informed Buyers and Sellers – and in a market as active as Toronto’s, sold prices are a critical part of that information.
• Sold data from unclosed transactions is already in the hands of hundreds of thousands of people. The GTA’s 40,000+ REALTORS have immediate access to sold prices and can provide that data to their clients. Every day we see stories in the media about sold prices for specific properties (and no, many of those publications do not seek permission from the buyer and seller before doing so). Unclosed transaction prices matter: they are often the best comparable sales as they reflect the most recent sales activity.
• Sold price data is already public – and has been for MANY years, via MPAC. Any property owner in Ontario can search up to 24 properties (for free) through MPAC – it’s as easy as creating an account with your tax assessment roll number and access key (found on the bottom right side of your Property Assessment Notice). Price information has never been deemed to be private information in Ontario.
• We believe in transparency – and no industry needs more of it than the real estate industry.

In one of my Dear Real Estate Industry blog posts (May 2016), I begged REALTORS to:

Stop Being Afraid of Data
…Sold prices will soon be public information in Toronto, and you’re going to have to accept it. I know you consider yourself to be the gatekeeper of the sold price data, and you’ve tried to convince me you care about the public’s right to confidentiality….but I think that what’s really going on with you is that you’re afraid of being replaced.

But here’s the thing. You were always about more than the data. On your good days, you’re about helping people fulfil their dream of owning a home, and you do that through education and interpretation of the data.  You find and show homes, you value them, you negotiate contracts, you investigate scary basements and corners and ask all the right questions, so buyers don’t buy the wrong house. Your job has always been to protect Buyers, and you don’t need exclusive data to do that.

And if you’re worried about Sellers, don’t be. It was never about data for them either. Sellers want protection too, and they’re looking for you to guide them through selling their most valuable asset. They look to you for home preparation, staging, marketing, showings, strategy, negotiations, deposit-holding, lawsuit-avoiding and yes, interpreting data to arrive at value. Be brave and welcome more transparency – it’s good for the consumer and I swear it’ll be good for you too.

So what now?

I really wish REALTORS would see the opportunity in being the ones who control the information by sharing it, instead of the ones who control the information by withholding it.

One need only look to the south to see what happens when REALTORS hoard information: a ‘disrupter’ comes in, shares the information on your behalf (and then gets accused of selling that information back that you). Zillow is knocking on our door – they’ve already told us that. We’ve wasted years arguing about data, and millions of dollars trying to prevent it from becoming public, all the whilst the real threat – the disrupters who aren’t even part of our industry – have been preparing themselves to pounce.

There’s an opportunity right now for REALTORS to BE the disrupters. To LEAD the way. To move past the fear and walk into a bold new world where we listen to our consumers and meet them where they are. 

Let’s not be the architects of our own demise. Let’s not continue to drag this debate on with another appeal and further erode the public’s confidence in us. No more stall tactics.

Please TREB: accept the Federal Court of Appeals decision and let’s all move on. Let’s spend our time moving forward and embracing data and transparency. This has gone on long enough.

TREB has 60 days to appeal to the Supreme Court of Canada.