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Following pressure to increase private access to the Competition Tribunal ("Tribunal"),1 Parliament has made significant amendments to the Competition Act2 (the "Act") to make it easier for private litigants to bring claims to the Tribunal.3 The most recent amendments, in force since June 2025, expanded the grounds on which private parties may seek leave to apply to the Tribunal. These amendments allow private litigants to bring applications if the Tribunal is satisfied that doing so is in the "public interest". By doing this, Parliament has, in theory, opened the door to a wider set of potential litigants at the Tribunal.
Martin v Alphabet Inc, Google LLC, Google Canada Corporation, Apple Inc, and Apple Canada Inc, 2026 Comp Trib 3 ("Martin"), is the first case to address this new path to the Tribunal. In Martin, the Tribunal declined to grant leave to the proposed applicant on the particular facts of the case. However, the Tribunal set the test for leave under the public interest branch, providing guidance for all future cases.
Background: Martin concerned the internet search engine market. The applicant, Alexander Martin, an independent videogame developer, sought leave to commence an application against Google for abusing its alleged dominance, and against Google and Apple for entering allegedly anti-competitive agreements.4 He argued that this conduct created market barriers, preventing new competitors from entering and existing competitors from growing.
The Statutory Regime: Private applications may only be brought with leave of the Tribunal. Parliament added new language to the leave provisions, allowing the Tribunal to grant applications where "it is satisfied that it is in the public interest to do so."5 This is the only pathway to bring applications challenging deceptive marketing,6 and one of two pathways available for most other kinds of reviewable conduct.7 When seeking leave under any pathway, an applicant must provide affidavit evidence.8
Martin—Setting the Test for Leave:
i. Purpose of the Leave Test
The Tribunal concluded that the public interest test expands access to the Tribunal to parties beyond businesses directly affected by anti-competitive conduct.9 Its purpose is to enable the Tribunal to grant leave to a wider range of parties, including affected consumers and public interest litigants, thereby increasing access to the Tribunal.10 In setting the test, the Tribunal focused on this expansionary goal. The Tribunal also noted that private litigants, like the Commissioner, are applying to resolve competition law concerns, not resolve commercial disputes.11
ii. Overview of the Public Interest Test
The Tribunal concluded that an application is in the public interest where it meets a modified version of the test for public interest standing in public and constitutional law cases. In assessing whether an application is in the public interest, the Tribunal considers three questions:
- Is the proposed application a substantial and genuine competition law dispute that warrants resolution by the Tribunal under the provision for which leave is requested?
- Does the applicant have a genuine interest in the proposed application?
- Is the proposed proceeding a reasonable and effective means to determine the competition issues raised?12
Importantly, this is not a list of step-by-step requirements. Rather, these are questions which guide the exercise of the Tribunal's discretion.13 The test is not identical to its public law counterpart. It is interpreted in light of the Competition Act's purposes,14 and the sufficiency of evidence provided by the applicant. Finally, the Tribunal emphasized that the threshold for leave should not be difficult to meet.15
iii. Step One: A Substantial and Genuine Competition Law Dispute
To be substantial, an application must warrant a Tribunal proceeding. To assess this, the Tribunal focuses on the strength of the applicant's evidence. Justice Little, writing for the Tribunal, explained that there must be a sufficient factual basis to support the application, with evidence directed at the elements of the relevant reviewable conduct.16 The Tribunal will not weigh competing evidence or resolve complex issues, nor hold the applicant to a standard of "credible, cogent and objective evidence", but will assess the evidence for baseline sufficiency.17 This way, the Tribunal filters out unmeritorious claims.
To be genuine, a dispute must be directed to addressing competition in a market.18 The Tribunal is not a forum for private commercial quarrels, but for policing misbehaviour in a market. The draft notice of application must show that the impugned conduct affects market power or other aspects of competition.19
iv. Step Two: A Genuine Interest
This stage is not modified by the competition law context. The applicant must show that its interest in the matter is genuine. It considers factors such as the applicant's (1) "real stake" in the proposed proceedings, (2) "engagement" with the issues, (3) reputation, and (4) real and continuing interest in the matter at issue.20
v. Step Three: Reasonable and Effective Means
This step ensures that the applicant and the proposed proceeding are an effective means of bringing the issue to a resolution. The Tribunal will consider similar factors to those addressed in public law litigation:21
- whether the proposed action is an economical use of judicial resources,
- whether the issues are presented in a context suitable for judicial determination in an adversarial setting,
- whether permitting the proposed action to go forward will serve the purpose of upholding the principle of legality,
- the applicant's capacity to bring a claim,
- whether the case transcends the interests of those directly affected,
- whether there are realistic alternative means to determine the claim, and
- the potential impact of the proceedings on those not directly affected.
However, the Tribunal noted the following distinctions between the competition law context and public law. Notably, evidentiary considerations weigh more heavily.22 The Tribunal suggests that applicants should show a "realistic or tangible prospect of obtaining the necessary additional evidence for an eventual hearing on the merits of the proposed application".23 This includes identifying potential witnesses that can testify to effects on competition and retaining experts.24
Additionally, the "realistic alternative means" consideration may be moot in competition cases. Courts can only hear certain competition issues, and so the Tribunal may often be the only forum to address disputes.
This stage is thus largely similar to the public law test, with small modifications. The applicant must show that it can effectively argue a complicated competition law dispute.
The Result in Martin:
Mr. Martin was not granted leave. While his application was a substantive, genuine competition law dispute (thereby narrowly satisfying the first branch of the test), it was marred by significant evidentiary failings. The bulk of Mr. Martin's evidence consisted of court documents from proceedings against Google and Apple in the US District Court, introduced as hearsay.25 While the Tribunal found that it could consider some of these documents, they were insufficient. This led to a finding that Mr. Martin did not show a genuine interest in competition in the search engine market.
For counsel bringing private applications, the Tribunal's findings on capacity to bring the application are salient. The Tribunal specifically noted that Mr. Martin's counsel lacked experience in competition law and presented no evidence on how counsel would advance the claim.26 This combined with the fatal lack of evidence to doubt Mr. Martin's capacity. For these reasons, the Tribunal dismissed his leave application.
Key Takeaways: Competition litigation is no longer constrained to proceedings between individual competitors and the Commissioner of Competition. Now, those outside a market—such as public interest groups and consumers—can apply to enforce the Competition Act. Parliament and the Tribunal have opened the door to enforcement for public, rather than private, aims.27 However, as the result in Martin indicates, private parties seeking "public interest" standing before the Tribunal should expect to have the sufficiency of their evidence scrutinized and should come prepared with a credible plan for prosecuting the claim. Ultimately, Martin will serve as a guide both for public-interest litigants and for those defending against their applications.
Footnotes
1 Innovation, Science and Economic Development Canada, "The Future of Competition Policy in Canada" (2022) at pages 51–52.
2 RSC 1985, c C-34 [Act].
3 The reviewable conduct that private parties can apply for orders under has expanded significantly. Private parties can now apply under sections 74.1 (deceptive marketing practices), 75 (refusal to deal), 77 (exclusive dealing, tied selling, and market restriction), 79 (abuse of dominant position), and 90.1 (anti-competitive arrangements).
4 See Martin, at paras 1, 10–24.
5 Act, ss 103.1(6.1) and (7).
6 Act, s 103.1(6.1).
7 Act, s 103.1(7). The other pathway, also recently amended, has yet to be addressed by the Tribunal. In our previous blog post, we address the Tribunal's decision in JAMP Pharma Corporation v Janssen Inc, 2024 Comp Trib 8 [JAMP], which foreshadows the likely effect of these amendments.
8 Competition Act, s 103.1(1).
9 Martin, at para 89.
10 Martin, at paras 97–102.
11 Martin, at paras 109, 117, 131; Symbol Technologies Canada ULC v Barcode Systems Inc, 2004 FCA 339 at para 23 [Symbol].
12 Martin, at para 163. See British Columbia (Attorney General) v Council of Canadians with Disabilities, 2022 SCC 27 at para 28 [Council of Canadians with Disabilities].
13 Martin, at paras 148–149.
14 See Competition Act, s 1.1.
15 Martin, at para 151. This has long been the intention of the leave test. See Symbol, at para 17.
16 Martin, at para 119.
17 Martin, at paras 123, 125.
18 Martin, at para 131.
19 Martin, at para 132–133.
20 Martin, at para 135. See also Council of Canadians with Disabilities, at paras 51, 101–103.
21 Martin, at paras 137-138; Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 at para 51.
22 Martin, at para 142.
23 Martin, at para 143.
24 Martin, at para 143. See also JAMP, at para 67.
25 See Martin, at paras 171–174, 176–187.
26 Martin, at paras 231–233.
27 Two other public-interest groups have commenced applications at the Tribunal. See Consumers Council of Canada v Live Nation Entertainment Inc, et al, (Notice of Application for Leave) CT-2025-009; The Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic, (Notice of Application for Leave) CT-2025-007.
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