CANADA Law and Practice Contributed by: David Gadsden, Brendan O’Grady and Anton Rizor, Baker McKenzie
private applications may be brought, including anti- competitive agreements and deceptive marketing practices. They also introduced a new “public inter - est” basis for obtaining leave and empowered the Tribunal to award monetary relief in certain cases, including amounts based on the benefits derived from the impugned conduct. Martin v Alphabet Inc.: Defining the New Public Interest Standing Test The Competition Tribunal’s first decision on the public interest standing test was released in Martin v Alpha- bet Inc . The Tribunal established a three-part test for granting leave, requiring an applicant to demonstrate: (i) a substantial and genuine competition law issue; (ii) a genuine interest in the matter; and (iii) that the proceeding is a reasonable and effective means of bringing the issue before the Tribunal. The Tribunal emphasised that public-interest standing should be available where competition issues warrant adjudica - tion, even if the applicant cannot demonstrate that it was directly affected by the impugned conduct. As the first decision interpreting the amended leave pro - visions, Martin is expected to play a significant role in shaping the future development of private antitrust litigation in Canada. 2. Private Antitrust Claims: Basis and Procedure 2.1 Statutory Basis Private enforcement of Canadian competition law may occur through three distinct mechanisms. Pri - vate parties may seek to trigger public enforcement by (i) filing complaints with the Competition Bureau, (ii) pursuing damages through court proceedings under Section 36 (1) of the Competition Act, or (iii) seek - ing remedies directly before the Competition Tribunal through the private access regime established under Section 103.1. Complaints to the Competition Bureau The first avenue for private enforcement is through complaints to the Competition Bureau. Although com - plainants cannot obtain damages directly through this process, they may prompt the Commissioner of
Competition to investigate potentially anti-competitive conduct. The Act provides both informal and formal complaint mechanisms. An informal complaint may be submit - ted by a single resident and gives the Commissioner discretion to decide whether any action should be taken. The Commissioner is not required to investi - gate, provide reasons, or report the outcome to the complainant. A more structured process exists where six residents jointly request a formal inquiry. Such a request may lead to an inquiry under Section 10 of the Competition Act where the Commissioner has reason to believe that a civil remedy may be available, that a criminal provision of the Act has been breached, or that an order of the Competition Tribunal or a court has not been respected. However, the Commissioner retains broad discretion and is not obliged to commence an inquiry merely because a request has been filed. For - mal requests require a response. If the Commissioner refuses to commence an inquiry, the Commissioner must report the reasons for refusal to the Minister, who may request further inquiries but cannot compel the Commissioner to proceed. Private Damages Actions Under Section 36 (1) Section 36 (1) of the Competition Act provides a statutory cause of action that allows individuals and businesses to seek compensation for loss or damage arising from certain violations of the Act. In particu - lar, the provision applies to breaches of the criminal provisions contained in Part VI, including price-fixing and bid rigging conspiracies and certain deceptive marketing practices. Canadian courts have interpreted the concepts of “loss” and “damage” broadly, thereby extending the availability of private actions beyond those who dealt directly with the alleged wrongdoer. In the Supreme Court of Canada’s 2013 trilogy of decisions, Pro - Sys Consultants Ltd v Microsoft Corporation , Sun - Rype Products Ltd v Archer Daniels Midland Company , and Infineon Technologies v Option Consommateurs , the Court confirmed that indirect purchasers may advance claims under Section 36. These are consum - ers or businesses that purchased products through
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