Focus: Does privacy law trump competition law? – Law Times

Christopher Naudie

Oct 4, 2016

In an article for Law Times, reporter Jim Middlemiss explores an upcoming Federal Court of Appeal hearing which is “setting up a showdown” between federal privacy legislation (the Personal Information Protection and Electronic Documents Act) and Canada’s Competition Act. The Toronto Real Estate Board (TREB) is appealing an April 27 ruling by the Competition Tribunal, which mandated TREB to make sales data more accessible to consumers and agents. According to the article, the Tribunal established that TREB’s governing policies regarding the use of the Multiple Listing Service database were “anti-competitive and constituted an abuse of dominance under s. 79 of the Competition Act.”

Chris Naudie, a partner in Osler’s Litigation Practice Group, tells Law Times he anticipates the appeal court will concentrate on the unique facet of “how privacy law plays in competition litigation.” “I view the real heart of this as focused on privacy. It’s a really fascinating, interesting decision because of the fact that it raises an issue with the intersection of competition law, intellectual property law, as well as privacy rights,” says Chris. He states that the court deals with deciding “to what extent does the public policy imperative relating to the promotion of competition law override the privacy rights of consumers?”

The battle between TREB and the Competition Bureau relating to data access started in May 2011 (when the Competition Bureau confronted TREB’s restrictions on its members regarding MLS data use) and, as the article states, is likely not over yet. Chris theorizes there could be a further appeal to the Supreme Court of Canada, no matter which party triumphs at the appeal court, due to the issue’s significance.

For more information and insight on the hearing, read Jim Middlemiss’s full article “Focus: Does privacy law trump competition law?” in Law Times.