Almost a decade ago, the Toronto Real Estate Board became so concerned about new federal privacy rules, it drafted waivers for clients to sign to ensure realtors weren’t violating the law, a Competition Tribunal has been told.
Those waivers give realtors fairly broad rights to hand out virtual tour photos and personal information to clients that is contained on TREB’s MLS system (Multiple Listing Service), including the sale prices of homes, the Tribunal heard Tuesday.
That information is technically just supposed to go to clients with whom realtors have a relationship and only “when and where appropriate,” TREB chief executive Don Richardson told a hearing trying to determine if Canada’s largest real estate board has abused its market dominance and stifled competition.
Ideally it should also just be an edited “client full” version of the “broker full” MLS property listings TREB’s member realtors routinely use to help househunters find their dream home and home sellers determine the best price to list their home based on comparables in the area, Richardson said.
But he acknowledged that it’s not unusual for realtors to give out the more comprehensive broker full MLS listings, even though they contain “sensitive” information such as the name of the homeowners, their exact address, mortgage details and even sometimes notes to brokers such as the times the house can or can’t be shown, the Tribunal heard Tuesday.
That information is often shared via email between traditional “bricks and mortar” realtors and their clients, including folks who just call up to inquire about a property, Richardson acknowledged under cross-examination by John Rook, counsel for Ottawa’s Competition Commissioner.
Richardson stressed “that is not as widespread or routine an event” as it’s been made out to be during testimony at the Tribunal hearing, but agreed that more comprehensive information — especially the sale price of homes — is critical for realtors helping both buyers and sellers understand the market.
Yet realtors who run a new generation of online brokerages called Virtual Office Websites are being denied that information in MLS datafeeds from TREB and forbidden from posting any such information on their password-protected websites, because of privacy concerns by TREB.
The crux of the issue before the tribunal is whether real estate boards can maintain their exclusive control of MLS data and deny such critical information, including data on previous sales, to new online competitors intent on offering discounts in commissions to clients who do more of their own homework.
Richardson told the Tribunal that more than half of all complaints about privacy issues to TREB come from home-sellers upset to find virtual tour photos of their homes — which are covered by the waivers they sign when they agree to work with a specific agent — are still on the MLS system accessible to TREB’s 34,000 agents long after the home is sold.
That’s because realtors compile a list of similar solds in a neighbourhood when putting together comparative market analysis reports for clients.
Those reports, some with broker full property listings that include personal information, are often sent to clients electronically and TREB has no way to control to whom they go from there, the tribunal was told.
The handful of virtual office websites, including Realosophy.com and TheRedPin.com which have already testified in the complex case, say they are just seeking equal online access to property data routinely available to more traditional bricks-and-mortar brokerages.
“I have always said that VOW rules and the VOW (data) feed can change in the future depending on clarification of the privacy issues,” said Richardson.
But the tribunal heard that TREB never approached the federal privacy commissioner for clarification of the privacy rules, which took effect in 2004, until just this past spring when it had its public relations firm invite her to speak at a national realtors’ conference.
The request was declined. After that, TREB drafted a series of questions and answers around privacy issues that its public relations firm was supposed to send to the privacy commissioner.
They were never sent, the tribunal was told. So a new set was sent off just a few weeks ago.
The hearing continues Thursday.