A Ruling in Sunderland v. TRREB

A Big Win for The Franchisors, and a Win for Other Defendants

From time to time, I have mentioned that there is a case going on north of the border that is a cousin to the big antitrust cases here in the States: Sunderland v. TRREB. In all respects, it’s the same case as Burnett, Moehrl and Nosalek.

It alleges a violation of Canada’s Competition Act by a large number of brokerages (seven of them including Royal LePage), franchisors including RE/MAX and Century 21, and Toronto Regional Real Estate Board (TRREB) and CREA. It’s the same theory as Moehrl: the Associations created a set of rules that mandate compensation, the brokerages all enforce those rules, the franchisors force brokerages and agents to join CREA/TRREB which places those rules on them, etc. etc. and that results in higher commissions.

They are identical cases, except of course, that Sunderland is in Canada and therefore is being brought under Canadian antitrust law.

I have often mentioned that while I am a lawyer (retired, NY Bar), I am not an antitrust specialist, nor am I a litigator, nor am I your lawyer. That goes double for a foreign country’s legal system. I am simply not informed enough to understand the shadings of how Canada’s Competition Act differs from its American counterparts.

Having said that, I think I do know enough to draw a few conclusions regarding a recently released decision by the Court in Sunderland v. TRREB.

While media coverage (to what extent there is any) has tended to paint this as a victory for the plaintiffs as the class action lawsuit is allowed to go forward, my own take is quite the opposite: this opinion reads like a big win for the defendants.

With the caveat that you should ask someone who actually understands Canadian law and Canadian antitrust law in particular, let me go over my reading of this ruling and if there is going to be any impact to the big cases in the U.S.