The Competition Tribunal has issued its first ruling under the new “public interest” route that lets ordinary people ask permission to bring competition cases. It set a three-part test for such bids, then refused an independent game developer permission to sue Google and Apple, finding his evidence thin and his plan to run the case unproven.
What the case was about
An independent game developer asked the Tribunal for leave to bring a private case against Google and Apple. He alleged the two companies struck a deal under which Apple made Google the default search engine on more than two billion Apple devices worldwide, in exchange for payments from Google in the order of US$20 billion a year.
He argued the arrangement kept Google dominant in online search, discouraged Apple from building a rival search engine and shut out competition. He sought to proceed under the abuse of dominance provision of the Competition Act against Google, and under the anti-competitive agreements provision against both companies.
Until recently, a case like this could normally only be brought by the Commissioner of Competition, or by a business that could show its own operations were directly and substantially affected. Amendments Parliament passed between 2022 and 2024 added a second door: any person — a consumer, an academic, a public-interest group — can ask for leave if bringing the case would be in the public interest, and can even seek monetary compensation. Martin v. Alphabet was the first time the Tribunal had to decide how that new door works.
The test the Tribunal set
In its decision, published Jan. 13, the Tribunal borrowed from the Supreme Court of Canada’s public interest standing test and adapted it to competition law. A would-be applicant must now show three things.
First, the proposed case must raise a substantial and genuine competition dispute, backed by an affidavit-based factual foundation — not a full trial-level case at this stage, but more than assertions, and with evidence tied to Canadian markets. Second, the applicant must show a genuine interest in the issue, through a history of engagement or some representative stake, not just a passing concern. Third, the application must be a reasonable and effective way to resolve the dispute, which means the applicant needs the resources, expertise and a real litigation plan — witnesses, experts and a way to pay for it all.
The Tribunal said the test is meant to be flexible rather than a rigid checklist, and that the overall bar is not meant to be high. But it also stressed its gatekeeping role: the new route is not supposed to swamp companies and the Tribunal with strategic or weak cases.
Why this bid failed
The Tribunal accepted that the subject matter — the Google–Apple search deal — was of public interest, and that its own courtroom was the right forum. The application still failed, mainly on the second and third parts of the test.
On the evidence, the record was thin: a one-page affidavit from the applicant and a paralegal’s affidavit attaching thousands of pages from parallel U.S. litigation, with little that was specific to Canada. On genuine interest, the Tribunal found the applicant — who runs a business that uses Google search — had not shown an engagement with the broader issue that predated the lawsuit. On capacity, he offered no litigation plan, named no witnesses or experts, and did not show he had the resources to run a complex case. The fact that his law firm had class action experience was not, on its own, enough.
Leave was denied and the application dismissed, without costs.
Why it matters beyond one developer
Law firms that analysed the ruling say its practical message cuts both ways. The door Parliament opened in 2024 is genuinely open — but it rewards preparation. Future applicants, including consumer groups, will need credible affidavits, Canadian market evidence and a costed plan for running the case. Companies, for their part, now have a clear playbook for challenging under-prepared applications at the leave stage.
The ruling is also notable for who took part: the Commissioner of Competition, who usually stays out of private cases, intervened to argue for a flexible version of the test. That signals Ottawa’s competition watchdog sees the public interest route as a real second channel of enforcement — provided the people using it come ready.
