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
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;
the plaintiff must have suffered economic loss or some
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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