On January 13, 2026, the Competition Tribunal published its first decision interpreting the new “public interest” pathway for private access under s. 103.1(7) of the Competition Act. In Martin v. Alphabet Inc., Google LLC, Google Canada Corporation, Apple Inc., and Apple Canada Inc., the Tribunal dismissed an individual applicant’s request for leave to bring abuse of dominance (s. 79) and competitor collaboration (s. 90.1) claims—while at the same time articulating what the Tribunal characterized as a flexible but meaningful framework for when public‑interest leave will be granted.
The upshot: the Tribunal identified its goal to be to broaden public access to its dispute resolution process but not at the expense of inundating respondents and the Tribunal with strategic or unmeritorious matters. A coherent evidentiary record, a demonstrated genuine interest in the underlying claim, and a credible plan and capacity to prosecute a complex case—with evidence tied to Canadian markets—will be essential. Martin v. Alphabet shows that failure on those elements can mean denial of leave.
Why this Decision Matters
- First Articulation of the “public interest” leave test: parliament amended s. 103.1(7) in 2024 to add a second, public-interest based route to be granted leave, in addition to the traditional “affected business” route. The Tribunal has now indicated how that standard will apply in practice.
- Access vs. gatekeeping: the Tribunal confirms an intention to expand private access while screening out strategic or plainly unmeritorious proceedings that would burden scarce adjudicative resources.
- Practical signal to would-be applicants: a light record will not suffice. Applicants must file affidavits and supporting materials that show both (a) a competition case grounded in Canadian markets, and (b) the practical ability to run it.
The Background in Brief
An independent game developer sought leave to file a Competition Act application under s. 79 (abuse of dominance) against Google and s. 90.1 (anti‑competitive agreements) against both Google and Apple. He alleged that Google and Apple entered into an agreement in which Apple agreed to install Google as the default search engine on Apple's over 2 billion devices worldwide in exchange for payments from Google in the order of US$20 billion a year. He alleged that this agreement maintained Google’s dominance in the market for online search providers and deterred Apple from entering the search engine market, thus preventing competition.
The Parties’ Proposed Tests for Public‑Interest Leave
The parties, including the Commissioner of Competition, proposed different tests for determining whether public‑interest leave should be granted. Typically, the Commissioner of Competition does not take a position in private cases, so his participation in the case at hand is notable. The tests proposed by each party took different approaches:
- Applicant: urged straight adoption of the Supreme Court of Canada’s public-interest standing test (serious issue, genuine interest, reasonable and effective means), contending the bar at the leave stage should be whether the case is “worth going into discovery.”
- Commissioner of Competition: supported a modified, flexible version of the same three-part public-interest standing test, using a “flexible and purposive approach”, and rejecting the respondents’ argument that the evidentiary standard at the leave stage should apply a prima facie case standard.
- Google and Apple: pushed for a rigorous screen, drawing on a prima facie case standard or comparable threshold tests used in class actions and securities leave regimes, and stressing the need to not “open the floodgates” to unmeritorious litigation.
Ultimately, the test endorsed by the Tribunal included elements from each of the parties' proposed approaches.
The Tribunal’s Framework: a Three‑Part Test Adapted From Public‑Interest Standing
The Tribunal held that “in the public interest” in s. 103.1(7) should be interpreted through the lens of public‑interest standing jurisprudence (referencing Downtown Eastside / Council of Canadians with Disabilities), adapted to the competition law context. It applied a three-part test, emphasizing that the analysis should be approached in a flexible and cumulative manner rather than as a rigid checklist. The Tribunal emphasized that the test was not intended to create a high overall threshold for securing leave. However, the Tribunal was clear that a meaningful evidentiary record is required to meet that threshold.
The test:
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Is the proposed application a substantial and genuine competition dispute?
Does the proposed application raise a substantial competition issue suitable for Tribunal determination under the specific provision(s) for which leave is sought, supported by an affidavit-based factual foundation? The Tribunal does not require a full prima facie showing at the leave stage, nor will it resolve disputed facts at this stage. The Tribunal will not grant leave where there is no realistic chance of success or where the record is too thin—particularly with regard to the effects of the alleged conduct on Canadian markets. -
Genuine interest of the applicant?
Evidence of a real and continuing interest, beyond a bare assertion, is required. The Tribunal will consider factors such as the applicant’s history of engagement with the issues, reputation, and representativeness of the public interest which is allegedly affected. The Tribunal emphasized the importance of proper evidence and indicated that minimal, conclusory statements will weigh against leave. - Is the proposed application a reasonable and effective means to resolve the issue? Under this stage of the analysis, the Tribunal will look at the applicant’s capacity to bring the application, including their resources, expertise, litigation plan, contemplated witnesses/experts, and whether the proceeding will likely be presented in a concrete, well-developed factual setting. It also considers whether the case is indeed of public interest, the existence of realistic alternative means to settle the dispute, and the impact the proceeding may have on others.
The Tribunal also underscored its role to remain vigilant against strategic litigation, and clarified that the new public‑interest route to leave under section 103.1(7) does not displace the affected‑business test for leave under the same provision. Applicants that properly fit the affected-business test should not simply try to bypass it.
Applying the Framework in Martin
Step 1—Substantial & genuine competition dispute
The proposed case raised genuine competition issues suitable for the Tribunal (alleged dominance and exclusionary defaults; alleged significant payments; possible lessening or prevention of competition). However, the evidentiary record was extremely thin and poorly tailored to Canada: it contained a one‑page applicant affidavit; a paralegal affidavit attaching thousands of pages of materials from parallel U.S. litigation; and limited Canada‑specific facts on market effects or competitive impact. On balance, the Tribunal found that this stage only slightly favoured granting leave.
Step 2—Genuine interest
The applicant provided minimal evidence of a genuine, continuing interest beyond his status as a user of search and brief, generalized statements. There was no history of engagement, no evidence of representativeness, and little to substantiate broader public‑interest advocacy. This factor weighed against leave.
Step 3—Reasonable and effective means
The Tribunal found that the applicant did not demonstrate capacity to prosecute a complex competition case because the evidence failed to show that the applicant had a litigation plan, did not identify fact witnesses or experts, did not indicate the applicant had the resources required to bring a complicated case and did not show how a Canadian‑focused record would be developed if leave were granted. The Tribunal rejected that the evidence could be adduced at discovery by granting the application for leave. Notably, the Tribunal accepted that the matter was in the public interest (albeit without offering insight into the basis for that conclusion), and that the Tribunal is the proper forum for adjudicating sections 79 and 90.1 of the Competition Act. Nonetheless, the overall evidence-based assessment at this step weighed heavily against granting leave: without directly acknowledging so, it appears that the Tribunal considered not only the 'public interest' of the substantive issue raised for adjudication, but (and significantly) the 'public interest' in a case proceeding on the strength of the evidentiary record provided by the applicant.
As a result of the analysis, the Tribunal denied leave and dismissed the application without awarding costs.
Key Takeaways for Leave Under the Competition Tribunal's Newly Crafted Public-Interest Test
- The framework is now set (subject to appeal): the Tribunal has embraced a standing-style test to permit access, and embedded gatekeeping functions at each step to filter out what the Tribunal considers to be cases supported by weak litigation plans or seemingly strategic forays. A strong evidentiary record is key to unlocking the gates at each step of the new test.
- Affidavit evidence matters: a one-page affidavit and a document dump will not be sufficient for leave. Evidence should be tied to Canadian markets, articulate the elements of the underlying Competition Act infringement, and avoid over-reliance on contested factual findings from other jurisdictions.
- Demonstrate a genuine interest with substantiation: evidence should demonstrate concrete history of engagement with competition law issues, articulable reasons for the applicant’s stake in the case at hand, and how allowing the applicant’s case to proceed, as conceived, is beneficial to the public interest rather than seeking to purely promote their own self-interest. Bare assertions will be discounted.
- Capacity to bring the case and evidence of a litigation plan: a successful applicant will lead evidence that shows they are capable of litigating a complex case. Evidence should show how the applicant plans to identify witnesses, retain experts, adduce further evidence, secure litigation funding, and connect the alleged conduct to Canadian markets. “We’ll get it in discovery” is not a plan.
- Even public-interest issues can be refused: the Tribunal acknowledged that the substantive claim was of public interest, yet still denied leave, based on deficiencies related to the evidentiary record and the applicant’s capacity to bring the case. Clearly, public interest in the adjudication of the substantive issue by the Tribunal is a necessary but, on its own, an insufficient basis for leave under section 103.1(7).
- For parties: expect the Tribunal to scrutinize capacity and record quality. Arguments that spotlight gaps in Canadian-focused evidence, hearsay-heavy exhibits, and the lack of a litigation plan will resonate. These arguments address the Tribunal’s gatekeeping role and may encourage the Tribunal to identify potential strategic or unmeritorious litigation and deny leave accordingly.
Final thoughts
Martin establishes that the Tribunal’s public‑interest door is open—but it comes with a threshold that rewards preparation. For applicants, success will hinge on credible affidavits, Canadian‑specific evidence, and a workable litigation plan proposed by a genuinely interested applicant demonstrating the ability to bring a complex case. For respondents, the decision provides a clear playbook to challenge under‑prepared applications at the leave stage.
Bottom line: Expanded access, perhaps but only if the Tribunal is satisfied that leave aligns with a sound use of its resources, and what the Tribunal considers to be an appropriate burden on the respondents. The Tribunal has articulated a rather guarded openness to cases seeking leave in the public interest standard.
