It appears the Supreme Court of Canada is the next stop in the ongoing battle to publicly share real estate data in Toronto.
The Toronto Real Estate Board (TREB), which collects and holds a historical information database of past sold homes, including their asking vs. selling price, length of time on market, and real estate agent commissions, lost an appeal Dec. 1 to keep that data private, on the grounds that doing so is anti-competitive.
At the heart of the issue is whether members of TREB, which include real estate agents, traditional brokerages, as well as virtual online offices (VOWs), can widely publish or distribute this data. Currently, real estate agents can only provide it directly to their specific clients — previous attempts from online brokerages to email or post the info on their sites have been shut down by the real estate board, as TREB’s stance is that sharing such data violates their copyright as well as sellers’ privacy.
Those arguments didn’t convince the Federal Court of Appeals, however. It upheld a 2016 ruling from the Competition Tribunal, stating TREB’s database doesn’t qualify for copyright protection, and finding the real estate board didn’t do much to protect privacy before explicitly telling VOWs they couldn’t use the data. The Tribunal argued that doing so hurt VOW’s business models, prohibiting them from creating new consumer tools and resources. For example, access to past sold prices could help buyers determine whether a Toronto townhouse, condo, or detached home is priced fairly compared to others in the neighbourhood.
“If TREB’s member brokers were able to able to offer VOWs with online search capabilities, their customers could conduct their own searched for, and review information relevant to, the purchase and sale of homes in the GTA, without the personal assistance or direct intervention of a broker,” the Competition Bureau stated in its original 2011 Tribunal application. “Currently, brokers and their staff obtain such information from the TREB MLS System themselves and provide it their customers by hand email, or fax.”
TREB stated it is disappointed in the ruling, and that it intends to take their fight to the highest level of court. Said CEO John DiMichele, “TREB disagrees with the decision of the Federal Court of Appeal and will be seeking leave to appeal the decision together as well as an order staying the decision pending the outcome of that appeal, if granted. TREB believes strongly that personal financial information of home buyers and sellers must continue to be safely used and disclosed.”
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Transparency for consumers
VOWs (including online brokerage Zoocasa), argue that not sharing sold data is a disservice to home buyers and sellers, who can use the additional insight to inform their real estate decisions. While some have expressed concerns that it could reduce the need for real estate professionals, that hasn’t been the case in the United States or Nova Scotia, where real estate data sharing is common practice.
“The ability to share and display market data (such as past-sold prices) with consumers is a positive development for the real estate industry,” says Lauren Haw, Zoocasa’s broker of record. “We strongly believe in a model where consumers are educated and able to work with experienced agents that act in an advisor capacity — not as gatekeepers of information.”
She adds that agents will continue to provide value to buyers and sellers by “interpreting price points, market trends and fluctuating data for their clients.”
“Zoocasa’s users are researchers and come to our site looking for relevant information to influence their home purchase – such as school boundaries and rental options. Past-sold data will help them make more informed decisions,” she says.
What’s next for the data?
TREB officially has 60 days to take its appeal to the Supreme Court, which then has six months to determine if it will hear the case. Until then, the real estate board has made it clear it will seek to stop the motion to release the data in the interim, meaning there won’t be any change for consumers until the Supreme Court has its say. However, this latest ruling is one step closer to greater transparency in the industry, which will benefit anyone looking to make their move in the Toronto real estate market.