Seven years ago, the Competition Bureau challenged the Toronto Real Estate Board (TREB) policy of preventing member brokerages from making information on selling prices available online. TREB’s position was based upon privacy: many sellers do not wish the selling price of their home to be easily searchable online and, in fact, the Real Estate Council of Ontario (RECO – the governing body for TREB) has a policy requiring explicit permission from both the buyer and seller before a home’s selling price can be advertised.
In 2016, after an extended review process, the Competition Bureau ruled that TREB must allow selling price data to be made available online. The ruling was upheld by the Federal Court of Appeal in 2017, and TREB appealed this ruling to the Supreme Court of Canada. In mid August, the Supreme Court decided that they would not hear TREB’s appeal, and so brokerages will now be allowed to publish sold data online.
Exactly how this will be done is not 100% clear as yet, as there are some uncertainties and ambiguities in the Competition Bureau’s ruling about how the data can be made available. Most likely, TREB members will be required to set up ‘VOW’s’ (Virtual Office Websites) where an account and a password will be required to access the information. Once a user has logged in, sold prices will be searchable.
It is also not completely clear how the Competition Bureau ruling squares with RECO’s policy against advertising selling prices without permission from the buyer and seller. RECO has tried to explain that ‘advertising’ a selling price is not the same as making the same information available in a searchable database — but this seems to me to be a distinction without a difference. It would appear that the principles of the Privacy Act are being compromised in the name of the public’s right to information, and RECO’s policy will need to change.
The distinction that is at the root of the RECO/Privacy Act Policy as well as TREB’s position is that between the date when the property is sold and the date when the transaction closes. Once the sale closes, the selling price is recorded on the Land Registry and is truly ‘public’ information, and there could be no privacy argument against disclosure of selling prices after closing. However, between the ‘date sold’ and the ‘closing date’ (typically 30-90 days), the transaction is in escrow and the selling price is not yet final; the price could be amended or the deal could even fall apart. The Competition Bureau has ruled that the right to privacy during the escrow period is less important than the public’s right to this information and the Supreme Court, by it’s silence, has agreed.