Competition Bureau gets court order for probe into potential anti-competitive conduct by CREA

The Competition Bureau says it's obtained a court order as part of an investigation into potential anti-competitive conduct by the Canadian Real Estate Association.

The bureau says its investigation is looking into whether CREA's commission rules discourage buyers' realtors from offering lower commission rates or whether they affect competition in other ways.

It's also looking into whether CREA's realtor co-operation policy makes it harder for alternative listing services to compete with the major listing services, or gives larger brokerages an unfair advantage over smaller ones.

The court order requires CREA to produce records and information relevant to the investigation, the bureau said, adding the investigation is ongoing and there is no conclusion of wrongdoing at this time.

CREA's membership includes more than 160,000 real estate brokers, agents and salespeople. The association said it's co-operating with the bureau's investigation.

In a statement, CREA chair James Mabey said the organization believes its rules and policies are "pro-competitive and pro-consumer" and help increase transparency.

Court documents show the bureau's inquiry began in June, as the competition commissioner said he had reason to believe CREA engaged in conduct impeding the ability of real estate agents to compete.

The documents note CREA owns the MLS and Multiple Listing Service trademarks and owns and operates realtor.ca, which real estate groups use to list homes for sale.

Websites like realtor.ca are where the public can view home listings, while MLS systems contain data that's only accessible to agents such as additional information on listings, sales activity in the area and neighbourhood descriptions. Some of this data is not publicly available for privacy reasons.

Access to the MLS system is a perk offered to members by real estate boards and associations.

The Competition Bureau in recent years has been reviewing whether the limited public access to these systems stunts competition or innovation in the real estate sector.

Property listings on an MLS system must include a commission offer to the buyers' agent, and when a listing is sold, often the agent for the buyer is paid by the seller's agent, according to the court documents.

They allege these rules reduce incentives for buyers' agents to offer lower commissions because if buyers aren't directly paying their agent, they may be less likely to select an agent based on their commission rate.

The bureau alleges the rules also incentivize buyers' agents to steer their clients away from listings with lower-than-average commissions.

The documents also say CREA's co-operation policy, which came into force at the beginning of 2024, favours larger brokerages because of their ability to advertise to bigger networks of agents.

The policy requires residential real estate listings to be added to an MLS system within three days of them being publicly marketed, such as through flyers, yard signs or online promotions.

The documents also allege the co-operation policy disadvantages alternative listing services as it's harder for them to compete on things like privacy or inventory.

Last year, the Competition Bureau said it was investigating whether the Quebec Professional Association for Real Estate Brokers' data-sharing restrictions were stifling competition in the housing market.

It obtained a court order in February 2023 related to the ongoing investigation, looking into whether QPAREB and its subsidiary, Societe Centris, engaged in practices that harm competition or prevent the development of innovative online brokerage services in the province.

Much of the data-sharing activity in question was linked to an MLS for Quebec real estate.

The Bureau is also inviting Canadians home buyers, sellers, realtors and other market participants to share their experiences with real estate commissions and CREA's policies in the Canadian real estate market. The feedback will help the Bureau assess if CREA's commission rules or Realtor Cooperation Policy raise issues under the law.

People interested can consult the call-out details on the Bureau's website, and are invited to provide their feedback by Nov. 6. All the information received will be thoroughly reviewed and considered, and will be kept confidential, subject to certain exceptions.