Supreme Court declines to hear TREB’s appeal against the Competition Bureau: What it means for compliance with REBBA

On August 23, 2018, the Supreme Court of Canada declined the Toronto Real Estate Board’s (TREB’s) request to appeal a lower court ruling. That order required TREB to drop certain restrictions on the display and use of “sold” prices by TREB members who share the information through Virtual Office Websites (VOWs).

RECO has received questions about what this means for compliance with advertising requirements under the Real Estate and Business Brokers Act, 2002 (REBBA). The short answer is that there is no impact because the ruling applies to information that is not considered advertising.

To understand the issue, it’s important to define what a VOW is as defined in the Competition Tribunal decision: “a password-protected area of a brokerage’s website where consumers can access and search a database containing MLS information.”

Some have asked how this could comply with REBBA, which prohibits the advertising of the “sold” price without the parties having provided written consent to do so. However, the Competition Tribunal’s decision determined that sold information provided on a password-protected VOW does not constitute advertising, since providing that same information in other formats (such as a Comparative Market Analysis), or providing other MLS information, does not constitute advertising, either.

The order was upheld on appeal to the Federal Court of Appeal. The Supreme Court of Canada, by denying leave to appeal, has affirmed the order.

While the decision enables the posting of a property’s sold price on a VOW, the price of a conditional offer should not be shared.

Advertising sales prices without required consent still violates REBBA

To summarize: the Competition Tribunal’s decision applies specifically to data published on a password-protected VOW, and not to advertising. As such, the existing REBBA rules regarding advertising continue to apply. Without the written consent of the parties to the agreement, registrants must not include in any advertisement, details of an agreement of purchase and sale, such as:

the prties to the agreement;
the location of the property; or
any provision of the agreement relating to the price.

Advertising such information without written consent is a breach of REBBA, and RECO will deal with it accordingly.