New Economy Price Predation Appeal is Dismissed

June 1, 2005

Culhane v. ATP Aero Training Products

On April 11, 2005 the Federal Court of Appeal dismissed the appeal in Culhane v. ATP Aero Training Products. The case involved alleged predatory pricing in circumstances in which examination guides, formerly sold in a paper format, were made available at no charge on the Internet as a marketing tool. The trial judge had found that such activities amounted to selling a product at an unreasonably low price, but also found the plaintiff could not prove that it had been harmed by this activity. The Court of Appeal found that the trial judge had not made any palpable or overriding error in finding that proof of loss or damage resulting from the alleged predatory conduct was not made out. It therefore dismissed the appeal on that basis. Consequently, the Federal Court of Appeal did not need to address the issue of whether making the examination guides available on-line at no charge amounted to selling the guides at an unreasonably low price within the meaning of the criminal provision in the Competition Act concerning predatory pricing. Stikeman Elliott was co-counsel for the respondent on the appeal.

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