Google and Apple are the targets of the first ever private claim for compensation before the Competition Tribunal, in a proposed application that raises allegations of abuse of dominance under s. 79 of the Competition Act, and anticompetitive agreements under s. 90.1 of the Act.
The proposed application claims that Google is dominant in the market for online search in Canada, controlling more than 90% of the market. It is alleged that Google has built up, and maintains, this dominance through anticompetitive agreements with major web browsers and original equipment manufacturers. According to the application, under these agreements Google shares a portion of its advertising revenue in exchange for Google having its search engine programmed as the default search engine on a variety of web browsers and devices. These agreements are said to disadvantage other rival and potential rival search engines, limiting competition in the Canadian market for online search.
The only agreement counterparty named in the application is Apple, which is alleged to have received billions of dollars annually via revenue-sharing payments from Google. The application argues that if it were not for Google's agreement with Apple, Apple would be incentivized to develop a competing search product, which would benefit Canadian consumers. Google and Apple's agreement is alleged to have resulted in reduced consumer choice and stifled innovation in the market for online search.
The allegations raised in the proposed application closely track the central theory advanced in the ongoing enforcement action brought by the U.S. Department of Justice against Google, which has similarly challenged the legality of Google's default search agreements.
Private Tribunal applications seeking compensation for anticompetitive conduct are new in Canada, having only been available since June 20, 2025. The creation of this new remedy was part of an expansive series of amendments to the Act over the past several years. With leave of the Tribunal, commercial parties and consumers can now seek monetary compensation to remedy a wide range of anticompetitive conduct, including abuse of dominant position, and anticompetitive agreements. Prior to the recent amendments, only the Commissioner of Competition could commence proceedings under the abuse of dominance or anticompetitive agreement provisions of the Act, and there was no avenue for parties to claim compensation.
Martin v. Alphabet is the first proposed private application for compensation to be commenced at the Tribunal. A motion seeking leave from the Tribunal to commence the application was filed on June 20, 2025. The Tribunal may grant leave for a private party to bring an application in two scenarios: 1) if the Tribunal has reason to believe that an applicant is either directly and substantially affected in the whole or part of the applicant's business by the conduct; or 2) if the Tribunal is satisfied that it is in the public interest to grant leave.
The applicant in the Martin case is a consumer, who alleges that he suffered from a poorer online search experience due to the pleaded anticompetitive conduct. Martin is therefore trying to obtain leave under the "public interest" branch of the Act's test for leave. This will be the first time the Tribunal will be called upon to consider and apply that branch of the leave test.
The "public interest" leave test is not the only matter of first impression that the Tribunal will have to address in this case. The Tribunal has considered very few anticompetitive agreement cases of any kind to date under s. 90.1 of the Act, with the existing case law arising in the context of settlements and preliminary motions. Many of the constituent elements of that provision have yet to be interpreted by the Tribunal, including the recent expansion of s. 90.1 that now covers certain vertical anticompetitive agreements among non-competitors.
The Tribunal will also, sooner or later, be called upon to address the role of contingency fees and litigation funders in Tribunal litigation.
If leave is granted to Martin, the Tribunal will eventually have to consider how to quantify the "benefit derived" from the pleaded anticompetitive conduct. Under the Act, compensation is limited to the "benefit derived" by the party that engaged in the conduct—a concept distinct from traditional damages or loss-based remedies.
Further complexity arises in the distribution of any monetary award. Under the Act, compensation is not limited only to the applicant but must be shared with "any other person affected by the conduct." However, the Act provides only minimal guidance on how this distribution is to occur, leaving the matter to be resolved "in a manner the Tribunal considers appropriate."
This raises difficult questions. Might "injured consumers" be required to share the spoils of litigation with Microsoft or Yahoo? These are the number 2 and number 3 competitors of Google in the market for online search in Canada, and arguably the entities with the best claim of having suffered an actual financial loss from the alleged conduct. One imagines that these competitors in online search have suffered reduced advertising revenues because of a depressed market share. And what about advertisers who may have paid a higher price for advertising than they otherwise might have paid because of Google's large market share? Have they not been affected by the allegedly anticompetitive conduct?
The concept of who has suffered harm from the alleged conduct could be quite expansive. When will such potential claimants emerge into the litigation? How would instances of actual financial injury be compared and weighed against more intangible and nebulous injuries (like enduring a poorer internet searching experience) in deciding an "appropriate" division of a monetary award? The regime put in place by Parliament has left the Tribunal with vexing questions on how to identify and fairly compensate affected parties.
To date, the Martin case is the only private application to be commenced since the monetary compensation amendments came into force on June 20, 2025. This paucity of private applications has surprised some observers, who expected a large volume of private access cases once the new regime came into force. Other applicants and counsel may be waiting on the sidelines to see whether the Martin case helps provide clarity on some of the questions raised by the new amendments to the Act before taking on the risk of commencing their own proceedings.
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