In June 2025, amendments to s. 103.1(7) of the Competition Act came into force, creating a new pathway for private rights of action at the Competition Tribunal by applying for public interest standing. In January 2026, the Competition Tribunal in Martin v. Alphabet Inc issued its first decision interpreting this newly legislated public interest pathway to private access, establishing the test for obtaining leave and dismissing an application to bring abuse of dominance and competitor collaboration claims. This decision highlights that, while section 103.1(7) was intended to broaden access to the Tribunal, a meaningful evidentiary record that demonstrates the public interest applicant has a workable litigation plan and the capacity to prosecute complex cases is essential to obtain leave by satisfying the Tribunal’s gatekeeping responsibility.
Why This Decision Matters
The decision is the first articulation of the public interest leave test since Parliament added this route to complement the traditional "affected business" route under the same provision that came into force in 2022. It clarifies that, while the Tribunal aims to expand private access, it will exercise its gatekeeping duties by screening out unmeritorious or strategic proceedings that burden the resources of the Tribunal or would-be respondents. Crucially, it informs future applicants that a thin evidentiary record will not suffice and that evidence filed in support of the leave application must be tied to Canadian markets.
The Background in Brief
An independent game developer sought leave to file an application under sections 79 (abuse of dominance) and 90.1 (anti-competitive agreements) of the Competition Act against Google and Apple. The applicant alleged that Google paid Apple upwards of US$20 billion annually to be the default search engine on Apple devices, thereby deterring competition in the market for search engine providers and maintaining Google's market dominance.
The Tribunal's Three-Part Test for Public Interest Leave
Adapting public interest standing jurisprudence to the competition context, the Tribunal in Martin established a flexible, cumulative, three-part test:
- Is there a substantial and genuine competition dispute? The application must raise a substantial issue suitable for the Tribunal, supported by an affidavit-based factual foundation showing a realistic chance of success. At this stage of analysis, the Tribunal will not weigh competing evidence or attempt to resolve complex or factually nuanced issues.
- Does the applicant have a genuine interest? The applicant must lead evidence of a real and continuing interest in the issue beyond a bare assertion, such as a history of engagement with the issues or representativeness of the affected public.
- Is a proceeding before the Tribunal a reasonable and effective means to determine the issues? The Tribunal assesses the applicant’s capacity to run the case, including their litigation plan, resources, expertise and identified witnesses or experts. Here, the Tribunal will ultimately consider whether the proposed action is an economical use of judicial resources and if the proposed proceeding is in the public interest.
In the words of the Tribunal, "the overall threshold for an applicant to obtain leave should not be difficult to meet, provided the applicant adduces sufficient evidence related to the three questions".
Application of the Test in Martin
The Tribunal found the first stage of the test weighed towards granting leave because the allegations against Google and Apple raised substantial and genuine competition issues. However, the Tribunal expressed concern about the quality of evidence led by the applicant.
At the second stage of the test, the Tribunal found that the applicant provided minimal evidence to support a genuine interest in the proposed proceeding. The applicant made assertions responsive to the factors considered by the Tribunal at this stage, but these assertions were unsupported by evidence. The lack of evidence weighed against granting leave.
The third branch of the test was the decisive branch for the Martin application. Here, the Tribunal found that the proposed case would be in the public interest. However, it also found that the applicant had led no evidence of a litigation plan, expert support, identified witnesses or the capacity to prosecute a complex competition case. The Tribunal found it inappropriate to rely on discovery to adduce this evidence.
Looking Forward
Martin establishes that, while the "public interest door" to the Tribunal is open, the Tribunal plays an important gatekeeping role, and the application needs to be supported by sufficient and appropriate evidence. Applicants should provide evidence of experience with competition-related issues, Canada-specific facts or allegations, and a workable litigation plan to succeed. For respondents, the decision provides guidance on when an application will be inadequate, for example where there are gaps in evidence relevant to Canada or a lack of evidentiary support for the applicant's capacity to manage complex litigation.
Interested parties may not have to wait too long to gain further clarification, as there are currently two other matters before the Tribunal seeking public interest leave under 103.1(7): Samuelson-Glushko, in which the Samuelson-Glushko Canadian Internet Policy and Public Interest Clinic seeks leave to bring an application under sections 77(2) (exclusive dealing and tied selling), 77(3) (market restriction) and 79 (abuse of dominance) against Apple; and Consumers Council, in which Consumers Council of Canada seeks leave to bring an application against Live Nation and Ticketmaster, also under sections 77(2), 77(3) and 79.
In each of these cases, the applications for leave appear to have a more fulsome evidentiary record than in Martin and the decisions may provide more colour about what, exactly, the Tribunal views as "sufficient evidence" to obtain leave for public interest standing and how the Tribunal will continue to approach its gatekeeping role.
If you have further questions about this update or class action litigation more generally, please contact the authors or a member of the Class Action Litigation group.
