The Competition Bureau recently brought into focus ongoing regulatory barriers to online sales of prescription eyewear. The Competition Bureau’s advocacy comes in the middle of a dispute between Ontario self-regulatory bodies and a major player in the online sale of prescription eyewear. An appeal from a decision finding online sales violated Ontario’s Regulated Health Professions Act is pending before the Ontario Court of Appeal. At stake is whether non-Ontario companies operating online need to comply with Ontario regulations governing the provision of healthcare in Ontario.
Competition Bureau calls for change
In a recent article in the Competition Bureau’s Advocate, the Competition Bureau took aim at regulations that limit the ability of consumers to purchase prescription eyewear online. The Competition Bureau asserted that online purchasing led to less-expensive and more convenient options than in-store sales. The Competition Bureau questioned whether Ontario regulations that require licensed physicians, optometrists and opticians to prepare, adapt and deliver prescription eyewear were too restrictive.
The Competition Bureau agreed that regulated health professionals had an important role to play but questioned whether the regulations were narrowly directed to preventing harm to consumers.
However, decision-makers should consider whether it is strictly necessary for licenced professionals to be involved in all aspects of the eyewear dispensing process (i.e. preparation, adaptation and delivery), and to what degree.
The Essilor Case
The timing of the Competition Bureau’s advocacy suggests that it may be intending to influence an issue that is before the Ontario Court of Appeal.
In College of Optometrists of Ontario et al v. Essilor Group Canada Inc., the self-regulatory bodies for Optometrists and Opticians successfully challenged whether online sales by the Essilor Group are permitted under Ontario’s regulations.
The Ontario Superior Court of Justice held that online sales by Essilor were subject to Ontario regulations that restricted who could dispense eyewear. The court held that the activities of Essilor in making eyeglasses, filling prescriptions and delivering eyeglasses involved “dispensing” of eyeglasses within the meaning of the Regulated Health Professions Act. The court then needed to decide whether the Ontario legislation applied to Essilor given that Essilor was based in British Columbia and sold the eyeglasses over the Internet. Although the court accepted that most of the activities at issue occurred outside of Ontario, the court nevertheless held that the Ontario law applied because there was a sufficient connection between the activities of Essilor and Ontario.
In this case prescription eyewear is ordered by people in Ontario. It is delivered to them in Ontario. Presumably it is to be used by them while resident in Ontario. This represents a sufficient connection to Ontario. To find otherwise would mean the eyeglasses are provided without obligation to adhere to Ontario regulation. Ordering eyeglasses is the catalyst for, and delivery is part of, dispensing the eyewear; indicating that it is at least part of a “controlled act” as defined in s. 27(2) of the Regulated Health Professions Act.
Essilor has appealed the Ontario Superior Court of Justice’s ruling. The Ontario Court of Appeal granted a stay of the Superior Court decision pending the hearing of the appeal in May 2018. The case remains under reserve by the Ontario Court of Appeal.
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