TORONTO, July 11, 2016 -- The Toronto Real Estate Board is appealing the decision ordered by the Competition Tribunal to release property sold data and pending sold data (where the transaction hasn't yet closed) for broad dissemination on the Internet without requiring the explicit informed consent from the consumer.
TREB asserts the Tribunal erred in fact and law in determining that TREB has lessened competition. TREB does not compete in the real estate market. Its rules are designed to foster competition among its 45,000 active Members. TREB has always supported competition among its Members, as reflected in the market place.
Privacy laws and decisions of the Privacy Commissioner of Canada are clear in their requirement for consumers to provide their consent prior to the release of their personal financial information and specifically the sold price of your home. The new Digital Privacy Act which came into force in 2015 further buttressed the privacy rights of consumers. Canada's privacy law regime requires that any disclosure of personal financial information for uses not previously identified to the consumer requires the consumer's informed consent. It is TREB's view that the decision of the Competition Tribunal, with respect, does not respect this right of consumers within the GTA.
Furthermore, when disclosing sold and pending sold information, REALTORS® must comply with the Real Estate and Business Brokers Act, 2002 (REBBA 2002), Real Estate Council of Ontario (RECO) rules and guidelines, and contractual obligations. REALTOR® compliance protects consumer personal financial information to avoid compromising the position of property sellers and buyers. Moreover, TREB has copyright in the TREB MLS® System as supported by case law in Canada and the United States.
To ignore any of these laws is wrong. Any disclosure or release of personal financial information without explicit informed consent is against the law. When consumers within the GTA entrusted TREB REALTOR® Members as the custodians of their personal financial information, broad dissemination, as ordered in the Competition Tribunal decision, was not a contemplated use. While some may dismiss these concerns, there are others who feel strongly about keeping their information private for personal and other legitimate reasons. TREB, in accordance with the law, respects this choice. Why should homeowners in the GTA be entitled to less privacy protection over the personal financial information than those homeowners elsewhere in Ontario, elsewhere in Canada?
"This order provides little protection for the consumer and opens the door to misuse and abuse of their sensitive personal financial information and the content of an Agreement of Purchase and Sale contract that has not closed. The consumer has privacy rights and only the consumer should be the one to determine, with clear understanding, when and where their personal financial information is disclosed," said John DiMichele, TREB's Chief Executive Officer.
If the Tribunal's order stands, TREB cannot prevent personal financial information or other confidential information of residential property sellers and buyers within the GTA, such as pictures from being copied, sold, or misused once this information is made available on the Internet. The Tribunal acknowledges and agrees that once this data is online, it is gone. The laws state, and TREB believes, that buyers and sellers have a right to privacy – a right that only they may waive.
In TREB's view, this case is about protecting personal financial information of consumers within the GTA by adhering to Canada's privacy laws and respecting consumer privacy rights.
The Tribunal also accepted TREB's claim that the display of "pending sold" information would expose home sellers to being targeted by unsolicited approaches by other service providers, or even unsolicited offers by other purchasers. Yet, the Competition Tribunal is ordering this personal financial information of consumers within the GTA be broadly disseminated on the Internet. Once that information is available on the Internet, its use for other purposes cannot be controlled or protected.
The Competition Tribunal recognized in its decision that there is a high degree of competition in the market, and the focus of the Competition Bureau in this matter is on non-price competition. TREB believes that the GTA has a very competitive housing marketplace and there is substantial innovation being applied by Realtors® to market their services while abiding by Canada's privacy and consent regime.
"The issue for TREB is about duty of care and professional responsibility. TREB has grown to more than 45,000 Members across the GTA and does not discriminate between business models used by its Members. In fact, we welcome and support all innovation and business models. Make no mistake, this decision should raise concern for all consumers about informed consumer consent and disclosure of confidential content within an Agreement of Purchase and Sale contract that has not closed. TREB believes the case law is clear and the Digital Privacy Act and Personal Information Protection and Electronic Documents Act (PIPEDA) are very specific on consents. TREB believes it's the consumer's information and they have a right to choose. Choice and consent with respect to personal financial information does not impede innovation," Mr. DiMichele continued.