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12 June 2019
On 4 April 2019 the Ontario Court of Appeal overturned the Ontario Superior Court of Justice's finding that online sales of prescription eyewear by Essilor Group Canada Inc to Ontario residents violated Section 27(1) of the Regulated Health Professions Act. The lower court had found that these sales involved a controlled act, which was not performed by an optician or optometrist (College of Optometrists of Ontario and College of Opticians of Ontario v Essilor Group Canada Inc, 2019 ONCA 265).
Essilor conducts its online business in British Columbia but sells its products to the residents of other provinces, including Ontario. In British Columbia, any entity can dispense prescription eyewear; however, in Ontario, only optometrists and opticians can do so. At the lower court level, the College of Optometrists of Ontario and the College of Opticians of Ontario successfully sought a declaration that Essilor breached the Regulated Health Professions Act and an injunction against Essilor on the basis that it was dispensing eyewear in Ontario without involving an Ontario-licensed healthcare provider.
The dispositive issue was whether Essilor's sales to Ontario residents were sufficiently connected to Ontario such that Ontario legislation could be applied to a British Columbia entity. The court found that the sole act performed by Essilor in Ontario in the course of its online sales was the delivery of finished prescription eyewear. Although this act exists on the "continuum of activities" that constitute dispensing, the court found that delivery is a commercial element of dispensing that requires no application of professional healthcare skills. Therefore, the mere act of delivery did not, by itself, establish a sufficient connection to Ontario so as to bring Essilor's online transactions within the ambit of the Regulated Health Professions Act. The colleges' applications were therefore dismissed.
For further information on this topic please contact Abigail Smith at Smart & Biggar/Fetherstonhaugh by telephone (+1 416 593 5514) or email (firstname.lastname@example.org). The Smart & Biggar website can be accessed at www.smart-biggar.ca.
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