Provincial Courts Differ on Online Eyeglass Sales

Friday, January 26 2018 | 00 h 00 min | News

The Ontario Colleges of Opticians and the Ontario College of Optometrists jointly filed an application in December 2016, as is their right under Ontario legislation, to request the Court issue an order to Clearly to comply with Ontario’s Regulated Health Protection Act and the related Optician Act and Optometry Act. The case was heard in October 2017 and the court rendered its decision on January 11, 2018. The Ontario Supreme court ruled in favour of the Colleges of Opticianry and Optometry, ordering Clearly to comply with Ontario regulations.

British Columbia and Ontario Diverge
The judge noted that basis for the decision lay in the underlying purpose of Ontario’s regulated health professionals legislative framework. Unlike British Columbia, where legislation was changed in 2010 to reflect a purpose of consumer choice and enhanced competition, such is not the case in Ontario, where the framework of professional monopolies exists to deliver health care while protecting the interests of Ontario residents. The decision reads, “There is no justification for imposing the purpose of health professional legislation from British Columbia on those who reside in Ontario.”

“Dispensing” Not Defined in Quebec
A similar action taken by the Ordre des optométristes du Quebec v. Coastal Contacts Inc. ruled in favour of the company against the Ordre (College) in December 2014. What is the difference between the cases in Ontario and Quebec?

The Quebec case is distinguishable in the detailed definition of the practice of Optometry in Quebec’s code which includes the words; “sale and replacement of ophthalmic lenses.” The decision in the Quebec case is driven by the word “sale”. The law of British Columbia governed since it was determined that the sales contract between the company and the resident was substantially entered into in BC, and that the product was only “delivered” to a resident in Quebec.

Unlike in Ontario, where the “controlled act” of dispensing is broken into discrete defined steps, which does not include the actual sale of eyeglasses, there is no such equivalent in Quebec.