The Ontario Court of Appeal recently released its decision in the College of Optometrists of Ontario v Essilor Group Inc., 2019 ONCA 265. This case presents an interesting illustration of the Court’s support for the technological progression of the health care industry to support the best interests of the public, but in the face of staunch opposition by two Ontario regulatory Colleges: the College of Opticians and the College of Optometrists. Without clear legislated language, the Court was not prepared to compel Ontario consumers to attend an optometry or opticianry clinic to pick up prescription eyewear that the consumer had ordered online and from a regulatorily-compliant supplier in another Canadian province.
Case Summary: College of Optometrists of Ontario v Essilor Group Inc., 2019 ONCA 265
Justices Juriansz, Brown and Huscroft of the Ontario Court of Appeal recently addressed the issue of online markets of prescription eyewear, in the decision of College of Optometrists of Ontario v Essilor Group Inc. The core dispute was described by the Court to be the comparative prices at which Essilor and members of the Colleges provide prescription eyewear to the public.
Essilor is a federally incorporated company and one of the largest ophthalmic lens manufacturers in the world. Essilor conducts business as an online retailer of contact lenses and eye glasses and through both a bricks-and-mortar store. The online business is conducted through the websites of clearly.ca and coastal.ca.
The College of Optometrists of Ontario and the College of Opticians of Ontario (the “Colleges”) sought a declaration from the court that Essilor breached the Regulated Health Professions Act (“RHPA”) by dispensing prescription contact lenses or eye glasses from its online store, and an injunction prohibiting Essilor from engaging in such dispensing, except where the dispensing was performed by a Member of one of the Colleges or a Member’s delegate. The Colleges therefore sought to prohibit Essilor’s acceptance of prescription eyewear orders through its websites and the shipment of those products to patients in Ontario. The Colleges took specific issue with the operation of the online store, not the bricks-and-mortar store.
The issues that were decided by the court were:
- (i) whether the sale of prescription eyewear to individuals located in Ontario by Essilor constituted the controlled act of “dispensing”; and
- (ii) the constitutional question of whether a “sufficient connection” existed between the online provision of prescription eyewear and Ontario, so as to bring that activity within the realm of section 27 of the RHPA.
The Court considered the regulatory framework relevant to the dispensing of prescription eyewear in Ontario and in British Colombia. As an emerging retail market, online sales of prescription eyewear is a budding industry that does not neatly fit within the established regulatory framework and relevant legal jurisprudence.
The Colleges describe “dispensing” as a “continuum of activities”. However, the College of Opticians have not published any guidelines for the online dispensing of prescription eyewear. Conversely, the College of Optometrists have attempted to fill any regulatory uncertainty surrounding the online sale of prescription eyewear by publishing the College’s Internet Therapy Standard within its Optometric Practice Reference Standards of Practice. This standard required the personal attendance of the patient to fit or adjust the spectacles and provided the following rationale:
In-person fitting and adjusting of spectacles provides a final verification and mitigates risk of harm by confirming that patients leave the clinic with spectacles that have been properly verified, fit and adjusted. In-person delivery of spectacles establishes a patient/practitioner relationship in circumstances where patients are new to the clinic and spectacle therapy was initiated through the optometrist’s website.
Both of the Colleges view the final step of the “continuum of activities” related to dispensing to require the in-person attendance of the patient. This requirement was not fulfilled by Essilor’s online sales model. Furthermore, Essilor relies on information contained in the prescription and provided by the customer, and does not take any measurements of the patient. Interestingly, the British Colombia Optometrists Regulation requires an optometrist to include in a prescription the patients interpupillary distance. No similar requirement exists in Ontario.
Essilor assembles and prepares eye glasses for shipment at its British Colombia facilities. Prescriptions are filled and the finished eyewear is shipped from British Colombia. The Court held that neither the placement of an order by an individual in Ontario, nor the delivery or sale of prescription eyewear to individuals in Ontario, constitutes the controlled act of dispensing in Ontario.
The Court concluded that, although the Colleges’ submission that the delivery of prescription eyewear falls within the continuum of activities that make up the “dispensing” of such eyewear, the delivering of prescription eyewear by Essilor to customers in Ontario does not contravene section 27 of the RHPA. A sufficient connection was found not to be established by the “commercial act of the physical delivery of product ordered online to the customer in Ontario.” A sufficient connection, within the meaning of the Unifund analysis, was found not to exist between the acts of Essilor and the Ontario health professions regulatory regime to support the application of the RHPA to the supplier’s online sales. To find otherwise “would amount to using Ontario’s health professions regulatory legislation to grant Ontario optometrists and opticians a monopoly over the commercial importation of prescription eyewear into Ontario.” The present legislated language does not grant such a monopoly.
This decision by the Ontario Court of Appeal follows the decision by the Quebec Court of Appeal in Ordre des optometrists du Quebec c Coastal Contacts Inc, found that the sale of opthalamic lenses in Quebec through Coastal’s website without being registered with the College did not violate the Optometry Act, CQLR c 0-7 (Loi sur l’optométrie). The Ontario Court of Appeal found the decision to be persuasive for its insight that the provision of prescription eyewear to a person involves a transaction combining the elements of a commercial sale with the provision of professional health care services, finding, “prescription eyewear is not dispensed free of charge, and one component of eye glasses – the frames – quite often simply possesses an aesthetic or fashion aspect, not a health care one.”
Implications of the Essilor Decision
This is the first decision of the Ontario Court of Appeal to address the specific issues outlined above. This decision will no doubt be applied across the province and across the country to regulatory regimes beyond the online sales and dispensing of prescription eye wear.
Importantly however, this decision was decided in the particular context of the British Columbia and Ontario regulatory regimes. The Court specifically stated that, the British Colombia health professions regulatory regime that authorizes the online supply of prescription eyewear without the need for an in-person fitting or adjustment upon delivery provided two conditions are met. The first condition is a positive one: in the case of eyeglasses, the supplier must have the individual’s authorizing document – either a prescription from an optometrist or qualified medical practitioner or an assessment record produced by an independent automated refraction conducted by an authorization person; or, in the case of a contact lens, the contact lens record prepared by a person authorized to fit a contact lens. The second condition is a negative one: the supplier cannot dispense if an assessment record indicates refractive error or changes in refractive errors of a prescribed magnitude. Provided it meets those conditions, Essilor complies with the British Columbia regulatory regime by shipping prescription eyewear to a customer in fulfilment of an online order without providing the service of fitting or adjusting the delivered product.
The broad implications of this decision are therefore yet to be seen.
If you or your corporation are considering opening or are currently operating within the online health care marketspace and are unsure of the implications of the current regulatory regime upon your practice, please contact our firm to set up a free thirty-minute consultation.