“There is simply no legal, economic or factual basis upon which to order the remedy sought by the commissioner,” says CREA.

CREA has filed its response to the Competition Bureau’s challenge of its MLS rules, calling comments by commissioner of competition Melanie Aitken “preposterous” and stating, “There is simply no legal, economic or factual basis upon which to order the remedy sought by the commissioner.”

CREA’s response, filed with the Competition Tribunal March 26, says the challenge is “fundamentally misconceived. Contrary to the commissioner’s allegations, is it simply untrue that consumers have only one option if they want to sell a house using a MLS system operated by a local real estate board or association.”

CREA also goes after Aitken for some recent statements to the media. “The commissioner of competition has stated in multiple media statements that (CREA’s MLS rule amendments) amount to a ‘blank cheque’ because new anti-competitive rules could be introduced by CREA or its member boards. In CREA’s view, this allegation is preposterous. CREA has and always has had the ability to make rules, as do its member boards. CREA and member boards are obliged to, intend to, do and will comply with competition law,” says the response. “To suggest that the amended rules are a ‘step in the wrong direction’ (another frequently repeated statement made by the commissioner to the media) is (at best) disingenuous.”

The response by CREA also addresses the Competition Bureau’s assertion that “MLS restrictions have caused at least one broker to exit the relevant market.” It’s a reference to the controversial Toronto firm Realtysellers, which has pending legal action against the Toronto Real Estate Board and CREA. In its response, CREA says, “Realtysellers suspended operations because of impending disciplinary proceedings. The Real Estate Council of Ontario commenced proceedings to strip Realtysellers of its broker registration because the conduct of its principal Stephen Moranis afforded ‘reasonable grounds for belief that he will not carry on business in accordance with the law and with integrity and honesty.’” It says the RECO investigation and proceedings against Realtysellers were commenced prior to CREA’s March 2007 introduction of the interpretations to the MLS rules.

It appears the two sides will now meet at a Competition Tribunal hearing several months from now. When asked if a negotiated settlement was still possible, CREA president Georges Pahud told REM, “Nothing is inevitable. There have been cases where settlements were arrived at up to and including in the middle of a trial – so never say never.”

To view the full CREA response, click here.


Posted: 2010-03-26 15:56:54

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