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The Competition Tribunal denied leave for a public interest applicant to commence a private proceeding against Google and Apple regarding Google's dominance in search in Martin v. Alphabet.
In this first case considering leave for a public interest applicant, the Tribunal applied a modified version of the established public interest test, considering whether (1) there was a substantial and genuine competition law issue, (2) the applicant had a genuine interest in the matter, and (3) the proposed proceeding was a reasonable and effective way to resolve the dispute.
The leave application failed on the second and third steps of the test. The Tribunal found that although the applicant operated a business that uses and relies on Google's search engine, he failed to lead sufficient evidence to show that he had a genuine interest in whether and how the general search engine market in Canada operated efficiently, competitively, and in the interests of consumers, or that his interest in the technology/Competition Act issues raised in the application predated the filing of this legal proceeding.
The Tribunal also found that the applicant failed to provide sufficient evidence about how the litigation would be resourced and advanced. The mere fact that the applicant's law firm had experience litigating class action cases was insufficient, and the evidence presented did not establish that the applicant had the capacity, resources, and expertise necessary to advance the case.
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