Copyright 2008, Blake, Cassels & Graydon LLP
Originally published in Blakes Bulletin on Competition Law, April 2008
On December 3, 2007, the Alberta Court of Queen's Bench released its decision in Polar Ice Express Inc. v. Arctic Glacier Inc. The plaintiff, Polar Ice Express Inc. (Polar), was a fledgling company engaged in the manufacture and supply of ice. Arctic Glacier Inc. (Arctic), the defendant, was the industry leader for the supply of ice in the province of Alberta.
Polar sought damages against Arctic for unlawfully interfering with its economic interests. In particular, Polar argued that, in an attempt to win business, Arctic offered Sobeys, a grocery store chain which Polar supplied with ice, a lower price than the price charged by Polar.
It was alleged that Arctic used this same tactic with respect to some liquor stores that Polar had approached.
Polar argued that Arctic's conduct violated the price discrimination provision of the Competition Act, as Arctic did not lower the price charged to all competing grocery and liquor stores in the relevant geographic markets. Lower prices were offered only to those stores at which Arctic faced competition from Polar. Polar submitted that this behaviour amounted to price discrimination and that, as a result, the 'unlawful means' element of the tort of unlawful interference with economic interests had been satisfied. The two other elements of the tort of unlawful interference with economic interests are:
- the defendant must have intended to injure the plaintiff; and
- the plaintiff must have suffered economic loss or some related injury).
The Alberta Court of Queen's Bench agreed.
This decision is noteworthy for a few reasons. First, as a practical matter, price discrimination under the Competition Act has received relatively limited attention from the Competition Bureau. Indeed, the Competition Bureau has previously noted that it would support the decriminalization of the offence of price discrimination. Second, complainants alleging price discrimination are often those purchasers that have not been offered the same lower price as have their competitors by the same supplier, in effect arguing that the same lower price made available to their competitors should also be made available to them. In this case, however, the provision was invoked by a competing supplier. The Court acknowledged that while the "main purpose" of the provision may be to protect competing purchasers, "it does not mean that breaching this provision cannot be regarded as the unlawful act which satisfies the second element of the tort of unlawful interference with economic relations."
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