Access Denied: Competition Tribunal Rejects First "Public Interest" Leave Application

In a recent decision¹, the Competition Tribunal (the Tribunal) considered and rejected the first attempt by a private party to bring a case before the Tribunal under the new "public interest" test. Parliament has been slowly expanding the types of cases that private applicants (rather than the Commissioner of Competition) can bring before the Tribunal: until the summer of 2025, private parties needed to be directly affected by the challenged conduct; last summer, amendments to the Competition Act (the Act) came into force adding a "public interest" branch to the private access provisions². The Tribunal outlined the test that it will apply when determining whether to allow public interest applicants to bring cases before it.

What you need to know

• The test: When determining whether to grant leave on public interest grounds, the Tribunal will consider:
  • Is it a substantial and genuine competition law dispute?
  • Does the applicant have a genuine interest in the dispute?
  • Is a Tribunal application a reasonable and effective means of advancing the dispute?
• The evidence: Leave applications must be supported by sworn evidence addressing the merits of the application and the applicant's capacity, resources and expertise.
• Not a class action: The Tribunal concluded that Parliament did not intend to create a class actions regime through public interest applications at the Tribunal.

The test for public interest applicants

The Tribunal largely adopted the public interest standing test from constitutional litigation but made modifications to make the test fit the context and purpose of the Competition Act. The Tribunal noted that due to limited resources, it needs to be scrupulous to screen out unmeritorious, vexatious and strategic claims at an early stage.

The Tribunal was also clear that, in its view, Parliament did not intend for the public interest branch of the leave test to create a cause of action for monetary damages or a class actions regime before the Tribunal. This will likely be an area for further development in the case law as many of the cases that have been filed by private parties ask the Tribunal to order that respondents pay, in the language of the Act, "an amount, not exceeding the value of the benefit derived from the conduct that is subject of the order, to be distributed among the applicant and any other person affected by the conduct"³.

In deciding whether to exercise its discretion to grant leave, the Tribunal will weigh whether:

1. There is a substantial and genuine competition law dispute:
   1. A substantial competition law dispute is one for which there is a factual basis. The facts need to be directed at the elements of the relevant provisions of the Competition Act. To the extent that evidence is not available, the applicant must show a concrete plan for adducing evidence. The Tribunal will not weigh competing evidence at this stage, but will require that there is a realistic chance that the Application could succeed.
   2. A genuine competition law dispute is focused on competition issues and not other issues, like a commercial quarrel.
2. The applicant has a genuine interest: An individual with a genuine interest is one with a direct interest in a dispute and who has previously engaged with the issue.
3. The application is a reasonable and effective means of advancing the dispute: Although the Tribunal may be the only place to pursue certain disputes, it will also consider alternate possible forums. In addition, it will consider whether the applicant can effectively advance the application with reference to their capacity (including any plan for the proceeding), resources and personal expertise. Finally, it will consider if the dispute is really targeted at the public interest.

Application of the test

The Tribunal denied the applicant leave to bring an application alleging abuse of dominance and anti-competitive agreements, finding that:

1. There was a genuine competition law dispute, as the focus of the applicant's allegations was on competition issues, but the allegations were not well supported by evidence. The Tribunal specifically noted that the evidence provided was not focused on Canada.
2. The applicant did not provide sufficient evidence to show he had a genuine interest in the dispute. He did not provide evidence of (i) any history of engagement on the issues in his application or (ii) how he was negatively impacted by the specific alleged anti-competitive conduct.
3. The case was one of public interest, as it transcended the applicant and there were not alternative means to resolve the dispute (since the application was made under sections of the Act for which only the Tribunal had jurisdiction). Nonetheless, the applicant did not provide sufficient evidence of his capacity, resources or expertise to advance the dispute, which weighed heavily against granting leave.

The Tribunal awarded no costs, recognizing that this was the first public interest leave decision. To date, costs on leave applications under the private access provisions have been nominal⁴.

What's next

We expect further guidance on the public interest leave test this year. Several other public interest leave applications have been commenced since the summer of 2025, which will quickly provide the Tribunal with additional opportunities to develop its view of these cases. The Federal Court of Appeal may be given the opportunity to comment on the test if the applicant in this case appeals the Tribunal's decision.

Footnotes

1. To discuss these issues, please contact the author(s).

2. This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.

3. For permission to republish this or any other publication, contact Janelle Weed.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.