Competition Act’s Private Access Regime Picks Up Steam

Private applications to the Competition Tribunal (Tribunal) are gaining momentum, with several cases being launched and a new Tribunal decision setting the parameters for obtaining leave to file an application under the public-interest branch of the leave test. These developments follow amendments expanding the Competition Act’s (Act) private access regime, which came into force in June 2025. Among the notable changes, more conduct can be subject to private litigation, a publicinterest test for leave was introduced and a monetary compensation remedy is now available to private applicants.

The Tribunal’s PublicInterest Leave Test

In Martin v. Alphabet (Martin), an individual applicant sought leave on public-interest grounds to bring abuse of dominance and anti-competitive agreement claims regarding default search distribution arrangements between Google and Apple. On January 13, 2026, the Tribunal denied leave and, for the first time, interpreted the test for granting leave on the publicinterest grounds, which it adapted from the Supreme Court of Canada’s publicinterest standing jurisprudence.

The elements of the test are as follows:

1. Whether the proposed application raises a substantial and genuine competition law dispute suitable for determination under the specific provision(s) for which leave is sought
2. Whether the applicant has a genuine interest in the proposed application
3. Whether the proposed proceeding is a reasonable and effective means to resolve the competition issues

Two changes distinguish the Tribunal’s approach from the Supreme Court’s publicinterest standing test. The first prong was reframed from requiring a “serious justiciable issue” to a “substantial and genuine competition law dispute.” This branch must be supported by affidavit evidence directed at the elements of the claim. The Tribunal will not weigh contested facts at leave; however, a thin or foreign-focused record will count against leave, particularly where evidence about effects in Canada is lacking.

In addition, in determining whether the proposed proceeding is a reasonable and effective means to resolve the competition issues (i.e., the third prong of the test), the Tribunal will place greater weight on the applicant’s capacity and plan to prosecute a complex competition case than would the Supreme Court test (which is concerned with whether the lawsuit is a reasonable and effective way to bring the matter to court compared to other options). However, the Tribunal stressed a flexible, cumulative analysis, rather than a checklist.

The Tribunal also confirmed that applicants which qualify under the traditional leave test, namely that their businesses, in whole or in part, have been directly and, for most provisions under the Act, substantially affected by the alleged conduct, should seek leave under that branch of the leave provisions rather than seek leave on public-interest grounds.

In Martin, the Tribunal found that the applicant failed the second prong of the public-interest test for leave because he did not demonstrate a genuine, continuing interest beyond generalized assertions. He also failed the third prong because he did not have a concrete litigation plan, did not identify witnesses or experts, and did not demonstrate the resources needed to advance a complex case. This signals that evidence and capacity can be hurdles for publicinterest leave.

Other Private Access Cases in Process

In November and December 2025, three separate applications for leave were filed at the Tribunal by private litigants alleging that Vistar Media Inc. (Vistar), Apple Canada Inc. and Apple Inc. (Apple), and Live Nation Entertainment, Inc. and Ticketmaster LLC, including their Canadian affiliates (Live Nation/Ticketmaster), respectively, had abused their dominant positions. These leave applications have not yet been decided by the Tribunal.

• The Vistar case relates to alleged tying and foreclosure in digital out-of-home advertising services. The applicant, a former operator of digital out-of-home advertising technology services, alleges Vistar conditions access to its supply side exchange, limits interoperability and forecloses independent rivals.
• The Apple case concerns alleged anticompetitive conduct in iOS app distribution and inapp payment services (including exclusive dealing, tied selling, market restriction and abuse of dominance). The applicant, a public-interest advocacy organization, is seeking leave under the publicinterest test.
• The Live Nation/Ticketmaster case is a challenge against exclusivity and radius clauses that allegedly foreclose venue and artist competition in large livemusic markets. The applicant, a publicinterest advocacy organization, seeks leave under the publicinterest test, arguing individual stakeholders face retaliation risk and that the harm from the alleged conduct is too small on a person-to-person basis to justify individual actions.
• In each case, the applicants’ requested relief includes monetary remedies and a prohibition on the alleged exclusionary and abusive conduct, and a structural separation or divestiture in the Vistar and Live Nation/Ticketmaster cases.

What It Means for Your Business

Continued growth in private litigation is anticipated due to the introduction of monetary compensation — up to the value of the benefit derived from the conduct or, for misleading advertising, restitution — and the new public-interest leave test, which allows public interest groups and others to make Tribunal applications. These features have interested the plaintiffs’ class action bar, which is examining options to bring class-action-type applications before the Tribunal.

To be prepared for this new reality, businesses should:

• Take complaints from stakeholders seriously, as they now have a greater ability to seek redress.
• Have an action plan ready in case litigation is brought, as the timelines to respond can be tight.
• Consider whether there are strategic opportunities to benefit from the expanded private access regime.

For more information, please contact any member of our Competition, Antitrust & Foreign Investment group.