VIA EMAIL
Competition Tribunal Thomas D'Arcy McGee Building 90 Sparks Street, Suite 600 Ottawa, ON K1P 5B4
Dear Registry,
Re:
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Reply to the Attention of: Éric Vallières Direct Line: 514.987.5068 Email Address: Eric.Vallieres@mcmillan.ca Date: July 23, 2025
Alexander Martin v Alphabet Inc., Google LLC, Google Canada Corporation, Apple Inc. and Apple Canada Inc. – File No. 2025-004
We are counsel to Apple Inc. and Apple Canada Inc. (collectively, “Apple”) in the above-captioned application by Alexander Martin (the “Applicant”) pursuant to section 103.1 of the Competition Act (the “Act”), 1 which seeks leave to bring an application (i) against Alphabet Inc., Google LLC, and Google Canada Corporation (collectively, “Google”) under section 79 of the Act and (ii) against Google and Apple under section 90.1 of the Act (the “Leave Application”).
This letter is intended to serve as an informal motion under Rule 81(1) of the Competition Tribunal Rules (the “Rules”) 2 to seek an order from the Tribunal that Apple be granted leave to file affidavit evidence as part of its responding representations to the Leave Application.
A. Test for Leave to File Responding Evidence in a Leave Application
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Rule 119(3) allows the Tribunal to permit a respondent to file affidavit evidence as part of its representations. The Tribunal has permitted respondents to file such evidence where: (i) the proposed evidence is necessary for the respondents’ written representations and would be of assistance to the Tribunal in its screening function in the leave process under section 103.1 of the Act; (ii) it addresses discrete issues and is
R.S.C. 1985, c. C-34. SOR/2008-141.
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not part of an effort to adduce wide-ranging evidence; and (iii) it is in the interests of justice to do so, having regard to the summary nature of leave applications. 3
The Tribunal acknowledged in JAMP that “its task under section 103.1 … may affect the kinds of evidence that may be properly the subject of a successful request for leave to adduce evidence under Rule 119(3).” 4 Additionally, this Leave Application is the first to seek leave to bring a private application under the new “public interest” test under the amended section 103.1(7), which came into force on June 20, 2025. In this context, Apple submits that the Tribunal should not prematurely foreclose evidence that it may later find relevant after it has had an opportunity to decide on the proper interpretation of the “public interest” leave test.
In response to the Leave Application, Apple’s submission will be that, to satisfy the section 103.1(7) leave test, the Applicant must adduce sufficient credible, cogent and objective evidence to support a bona fide belief in respect of each element of sections 90.1(1.01) and 90.1(1) of the Act. 5
The Tribunal concluded in JAMP that respondents should be permitted to adduce focused responding evidence that is tailored to negate and respond directly to the applicant’s allegations and therefore supports a finding that no order could be made under the applicable reviewable practices provision of the Act as a result of the applicant’s allegations and evidence. 6 In response to this Leave Application, Apple should be permitted to adduce evidence specifically addressing the elements of the reviewable practices under sections 90.1(1.01) and 90.1(1).
B. Elements of the Alleged Practices Involving Apple
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With respect to the Applicant’s allegations against Apple under sections 90.1(1.01) and 90.1(1) of the Act, the Applicant must adduce sufficient credible, cogent and objective evidence of the following elements, which would be required for the Tribunal to issue any remedial order after adjudicating an application:
(a) Sections 90.1(1.01) and 90.1(1) each require an agreement or arrangement between two or more persons. The Applicant’s allegations against Apple focus on the Information Services Agreement (“ISA”).
3 JAMP Pharma Corporation v Janssen Inc., 2024 Comp Trib 4 (“JAMP”), at paras 9, 12-13; CarGurus, Inc v Trader Corporation, 2016 Comp Trib 12 (“CarGurus”), at paras 11-15; Audatex Canada, ULC v CarProof Corporation, 2015 Comp Trib 13 (“Audatex”), at paras 16-19. 4 JAMP, at para 23. 5 JAMP Pharma Corporation v Janssen Inc., 2024 Comp Trib 8, at paras 13-16; Symbol Technologies Canada ULC v Barcode Systems Inc, 2004 FCA 339, at paras 17-19; CarGurus, Inc v Trader Corporation, 2017 FCA 181, at paras 9, 21-23, 26-27; Audatex Canada, ULC v CarProof Corporation, 2015 Comp Trib 28, at paras 43, 55, 73. 6 JAMP, at paras 36-37.
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(b) The Applicant’s allegations against Apple rely on section 90.1(1.01) as his primary position, acknowledging that the ISA is an agreement between non-competitors and that Apple does not compete with Google in the assumed general search market. 7 Section 90.1(1.01) requires that “a significant purpose” of the agreement between non-competitors is to prevent or lessen competition in a market.
(c) As his alternative position, the Applicant relies on section 90.1(1), alleging that the ISA is an agreement between “potential competitors” within the meaning of Act. 8 Section 90.1(11) defines a potential competitor to be “a person who it is reasonable to believe would be likely to compete with respect to a product in the absence of the agreement or arrangement”.
(d) Sections 90.1(1.01) and 90.1(1) each require that the impugned agreement “prevents or lessens, has prevented or lessened or is likely to prevent or lessen competition substantially in a market” — that is, there would be substantially more competition in the relevant market in the absence of the agreement. 9 The anti-competitive effect that the Applicant alleges is that the ISA entrenched Google’s alleged dominance in the assumed market of general search, 10 eliminated Apple as a potential competitor and inhibited Apple’s ability to innovate. 11
Apple’s proposed evidence contains specific facts that address elements (b), (c) and (d).
C. Proposed Evidence
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The majority of the Applicant’s evidence in support of the Leave Application is from the proceedings brought by United States Department of Justice and 14 state attorneys general against Google LLC for alleged monopolization of the general search market in the United States (the “US DOJ Proceedings”), styled United States of America et al., v. Google LLC, No. 1:20-cv-03010-APM. The Applicant has included copies of trial transcripts of the September 2023 testimonies of two Apple witnesses (Mr. Eddy Cue and Mr. John Giannandrea, both Apple Inc. senior executives) who testified at the merits trial phase of the US DOJ Proceedings. 12 However, the Applicant did not include Mr. Cue’s additional testimony on May 7, 2025 for the subsequent remedies trial phase in the US DOJ Proceedings.
10. Nothing in this motion constitutes an admission regarding the admissibility, appropriateness, or relevance of the US DOJ Proceedings for purposes of the Leave
7 Proposed Notice of Application under ss. 79 and 90.1 of the Competition Act (“Proposed Application”), at paras 43-48. 8 Proposed Application, paras 49-52. 9 Toronto Real Estate Board v Canada (Commissioner of Competition), 2017 FCA 236, [2018] 3 FCR 563, at paras 82-92; Tervita Corp v Canada (Commissioner of Competition), 2015 SCC 3, [2015] 1 SCR 161, at paras 50-51. 10 Proposed Application, para 30. 11 Proposed Application, paras 53-57. 12 Affidavit of Daniel Pallag in support of the Notice of Application under s. 103.1, exhibits 102 and 103.
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Application. Apple’s written representations will address concerns regarding the use of the US DOJ Proceedings evidence, submissions and judgements that the Applicant has adduced and the weight, if any, that the Tribunal may properly ascribe to such materials from another proceeding in another jurisdiction.
11. However, to the extent that the Tribunal decides it may consider such evidence, Mr. Cue’s supplementary testimony would be necessary to the written representations that Apple intends to make in response to the Leave Application and the subset of Apple witness testimony that the Applicant has adduced. Apple therefore seeks leave to adduce the transcript of Mr. Cue’s May 7, 2025 testimony in the remedies trial phase in the US DOJ Proceedings.
12. A transcript of Mr. Cue’s May 7, 2025 testimony will be available for public distribution 90 days after the date of the testimony, as per US court rules. 13 If leave to adduce this evidence is granted, the transcript will be filed with an accompanying affidavit on or before the September 2, 2025 deadline set out in the Tribunal’s Direction of July 17, 2025.
13. Mr. Cue’s May 2025 testimony provides evidence on the following points:
(a) Apple never intended to enter the general search market and this remains true today.
It would be important for the Tribunal to consider this evidence together with the evidence filed by the Applicant when assessing whether the Applicant’s allegations give rise to a bona fide belief that it is reasonable to believe that Apple was or is a “potential competitor” under section 90.1(11) because it would have been or would be likely to compete with Google with respect to general search in the absence of the ISA.
(b) Apple entered into and renewed the ISA for the purpose of delivering to its customers the best products, including the best search engine, which Google was and continues to be.
It would be important for the Tribunal to consider this evidence together with the evidence filed by the Applicant when assessing whether the Applicant’s allegations give rise to a bona fide belief that the significant purpose for entering into the ISA was to prevent or lessen competition as required for an application under section 90.1(1.01).
(c) If the US District Court issues a remedial order in the US DOJ Proceedings preventing Google from paying Apple for distribution of the Google search engine,
13 See Federal Court Reporting Program, https://www.uscourts.gov/court-programs/federal-court-reporting-program.
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Apple would still do what is best for its customers, which today is to make Google the default search engine on Apple devices. Even if Apple is not permitted to so, most customers would still use Google, because it is the best search engine.
It would be important for the Tribunal to consider this evidence together with the evidence filed by the Applicant when assessing whether the Applicant’s allegations give rise to a bona fide belief that there would be substantially more competition in the absence of the ISA for purposes of an application under either section 90.1(1.01) or section 90.1(1).
(d) With recent advances in artificial intelligence technology and large language models, Internet users are increasingly turning to products like Perplexity, ChatGPT, Gemini, Grok and Claude for their search queries.
It would be important for the Tribunal to consider this evidence together with the evidence filed by the Applicant when assessing whether the Applicant’s allegations give rise to a bona fide belief that (i) general search constitutes a relevant market and (ii) there would be substantially more competition in the absence of the ISA for purposes of an application under either section 90.1(1.01) or section 90.1(1).
14. The Tribunal recognized in Audatex, CarGurus and JAMP that it is in the interests of justice to permit respondents to file responding evidence that is focused on discrete issues addressing the elements of the alleged reviewable practices. 14 This is particularly important given the significant scope of this first proposed case under the new “public interest” leave test and seeking the first order related to the new monetary award provision that has been added to the Act.
15. The evidence that Apple proposes to file meets this test, is necessary for Apple’s responding representations and will provide significant assistance to the Tribunal when considering the Leave Application. If the Tribunal determines that evidence derived from the US DOJ Proceedings is somehow relevant to its consideration of the “public interest” leave test, it would be essential and in the interests of justice that the Tribunal has Mr. Cue’s most recent supplementary evidence, rather than just an older subset of the US DOJ Proceedings evidence put forward by the Applicant.
D. Order Requested
16. For the reasons set out above, Apple respectfully requests that an order be issued pursuant to Rule 119(3) of the Rules granting it leave to file the transcript of Mr. Eddy Cue’s May 7, 2025 testimony in the remedies trial phase in the US DOJ Proceedings as part of Apple’s responding representations by September 2, 2025.
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Audatex, at paras 22-24, 28-29; CarGurus, at paras 22, 25-30, 31; JAMP, at paras 29-41.
17. Apple submits that the parties should bear their own costs of this informal motion.
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18. We thank the Tribunal for its consideration of the above and would be pleased to address any questions it may have in writing or at a case conference.
cc.
Yours very truly,
Éric Vallières
Albert Pelletier, Ian Literovich and Edwina Mayama, Berger Montague (Canada) PC Kent Thomson, Elisa Kearney, Derek Ricci, Steven Frankel, Chenyang Li and Anisha Visvanatha, Davies Ward Phillips & Vineberg LLP Paul Klippenstein and Kevin Hong, Competition Bureau Legal Services Neil Campbell and William Wu, McMillan LLP