Introduction

With the explosion of internet sales of prescription eyewear, a new threat exists to traditional optometry and opticianry.  On-line retail sales have skyrocketed since 2000. Business models permitting the dispensing of prescription eyewear, whether glasses or contact lenses, must include the involvement of an optician or optometrist in accordance with Ontario law and the law of most (but not all) Canadian provinces. Many on-line retailers use a business model that complies with provincial law and they dispense prescription eyewear.

BC Case Law

However, some business models do not comply with provincial regulations. Companies involved in such enterprises have been challenging provincial regulations across Canada over the past decade.  An early court decision in British Columbia found that a business model that violated the regulations had to be revised to comply with existing law. The court granted the injunction requested by the applicant college of opticians, but suspended the operation of the injunction for six months, finding no harm or urgency to the retailer’s customers. This suspension gave the retailer time to craft a business model to comply with the regulations and to seek legislative change to accommodate their business model[1].  During those six months, in early 2010, the British Columbia government changed how it regulates opticians, permitting dispensing of repeat prescriptions without the involvement of a regulated eye care professional. The lucrative business model could continue in compliance with BC law.

Quebec Case Law

In 2014, in a similar application involving the same on-line retailer based in British Columbia, the Quebec Superior Court ruled, in accordance with the Quebec Civil Code, that the sale of the prescription eyewear occurred in B.C., rather than Quebec, and therefore did not violate Quebec law that required the involvement of an optician or optometrist[2]. The Quebec optometry regulator was unsuccessful in its appeal to the Quebec Court of Appeal[3] and the Supreme Court of Canada[4].

Association Position Statements

In 2014 the Canadian Association of Optometrists issued position statements about internet dispensing and online eye exams, cautioning that on-line sales of prescription eyewear can compromise patient care[5]. In May of 2018 the Association indicated that “prescribing in the absence of a comprehensive eye exam poses a risk to the public of substandard care”,[6] and it documented the steps to be taken to protect optometrists.

Where are we in Ontario?

What is the situation in Ontario today? In 2018, regulators in Ontario continue to argue, in accordance with the current law, that professional standards and the public interest require that only opticians or optometrists be permitted to dispense prescription eyewear, whether they are involved on-line or in a bricks and mortar location; their guidance documents concerning internet dispensing reflect this position.  Concurrently, internet retail sales of prescription eyewear continue to skyrocket.

In January of 2018, pursuant to an application for an injunction filed in 2016, an Ontario court found that the Ontario law applies to companies that dispense prescription eyewear to Ontario residents without the involvement of an optician or optometrist, despite the fact that the company operates out of British Columbia[7]. The court granted the regulators’ request for an injunction to prevent the company from dispensing products in Ontario without the involvement of an optician or optometrist.  The court noted that policy change is the domain of the provincial legislature, and it is for the province to determine whether the landscape should be shifted.

Competition Bureau Weighs In

In the summer of 2018, the Competition Bureau weighed in. After reviewing Canadian, American and European reports showing that internet dispensing facilitated access for thousands of Canadians living in remote locations, and benefitted Canadians by ensuring competitive prices, the Bureau concluded that Canadian regulators should consider whether less restrictive measures can be created to permit on-line dispensing, while concurrently maintaining patient health and safety. The Bureau argues that doing so would “help to ensure that the Canadian economy benefits from innovative, high quality products and services and the lowest possible prices”, and would give enhanced access to consumers in remote areas.  The Bureau argues that regulations should be modernized so as not to inhibit legitimate forms of competition that benefit consumers and the economy. [For the Bureau’s report see http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/04377.html].

Conclusion

Whether or not the Ontario government weighs in on the matter remains to be seen, as legislative change would be required to permit the legal operation of Essilor’s current business model as described in the injunction order. For now, the legal landscape in Ontario preserves the legislative scheme that firmly entrenches the dispensing of prescription eyewear as part of an act that carries with it a risk of harm, and requires the involvement of an optician or optometrist, rather than a retail endeavour.  Future directions remain to be seen.

The above article does not constitute legal advice.  If you need legal advice, feel free to contact me at spalter@ddohealthlaw.com.

 

[1] College of Opticians of British Columbia v. Coastal Contacts Inc. 2009 BCCA 459 (CanLII) at paragraph 33.

[2] Ordre des optometrists du Quebec v.  Coastal Contacts Inc. 2014 QCCS 5886 (CanLII).

[3] Ordre des optometrists du Quebec v.  Coastal Contacts Inc. 2016 QCCA 837 (CanLII).

[4] Ordre des optometrists du Quebec v.  Coastal Contacts Inc. 2017 CanLII 442 (SCC).

[5] https://opto.ca/sites/default/files/resources/documents/cao_position_statement_-_internet_dispensing.pdf

[6] https://opto.ca/sites/default/files/resources/documents/internet_dispensing_en_may_2018.pdf

[7] College of Optometrists et al v. Essilor Group Canada Inc., 2018 ONSC 206 (CanLII).