Ontario Court endorses legality of online sale of prescription contact lenses and eyeglasses

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Recently, the Ontario Appeals Court gave its judgment in the College of Optometrists of Ontario v. Essilor Group Inc. case, 2019 ONCA 265.

The case illustrates the court's encouragement of the health sector's technological development, faced with the firm opposition of two colleges in Ontario: the College of Optometrists and the College of Opticians.

Without a clear language of legislation, the court wasn’t willing to force the consumer to be present at an optometry clinic and pick up the prescription eyewear ordered by the consumer online from a regulatory supplier from another province in Canada.

Summary of the case: Essilor Group Inc. versus the College of Optometrists of Ontario

Ontario Court judicial officers Brown, Juriansz and Huscroft recently discussed, in a judgment of Essilor Group Inc. v. the College of Optometrists of Ontario the topic of the digital prescription eyewear markets. The court defined the central conflict as the comparative rates for public for the prescribed eyewear by Essilor and the college’s representatives.

Essilor is a state-owned company. It is among the world's largest producers of the ophthalmic lens, and it runs an online business. Essilor runs brick-and-mortar shops as well as provides contact lenses and eyewear. The digital company is run via the coastal.ca and clearly.ca websites.

The Opticians College and the College of Optometrists of Ontario — “the colleges” — appealed for a declaration of Essilor's infringement of the Regulated Health Professions Act (RHPA) by prohibiting sales from Essilor’s online shop for prescribed lenses or eyeglasses, and an ordinance excluding Essilor from such exemptions, except where it was dispensed by a college member.

Accordingly, the colleges tried to prevent Essilor from accepting orders for prescription eyewear via its websites, and from shipping the products to Ontario patients. The colleges dealt specifically with the online shop operation, not with their brick-and-mortar shops.

The court gave its decision on the following issues:

• Whether Essilor’s prescription eyewear sales to Ontario patients constituted "dispensing.”
• If the provision for online prescription eyewear existed "in a sufficient connection" with Ontario to get that action into the RHPA Act, section 27.

In British Columbia and Ontario, the legal system for prescription eyewear delivery was considered by the court. Prescription eyewear online sales are an emerging market and do not come within the current regulatory system and the relevant legal case law.

The colleges assert that “dispensing” is the “continuum of action.” Nevertheless, no recommendations for prescription eyewear online sales have been released by the Optician Institute.

Instead, the college's Internet Therapy Std was published in its Optometry Practice Reference Std, and the College of Optometrists has tried to satisfy any regulatory uncertainty concerning the online sales of prescribed eyewear.

The norm justified that individual modification and alteration of spectacles allows final checks and mitigates the risk by ensuring that patients exit the premises with eyewear that has been correctly checked, installed, and modified.

The requirement also provides the following rationale: The personal spectacle delivery establishes a doctor-patient relationship in which patients are first-time visitors in the clinic, where the optometrist's website is used to initiate spectacle therapy.

The last step in this continuum of action concerning the exemption that is considered by both colleges requires the patient's attendance. The online business model of Essilor was not compliant with this requirement. Moreover, Essilor uses the prescription information supplied by the client and does not measure them. Interestingly, an optometrist must include interpupillary distance in the prescription in the British Colombia Optometrists Regulation. Throughout Quebec, there is no similar provision.

At its British Columbia premises, Essilor puts together and develops eyeglasses for shipment. The requirements have been met and the last eyewear from British Columbia has been delivered. It was held that the sale or delivery of prescribed eyewear to Ontario residents does not constitute a controlled action of distributing in Ontario, nor the placing of an order by an Ontario patient.

The court found that while the colleges submit that prescription eyewear is part of a continuum of actions that "donate" such eyewear, Essilor's delivery to clients in Ontario does not violate the RHPAsec 27. The college has decided to provide prescription eyewear in Ontario.

An appropriate relation, within the context of the Unifund review, was found to be not occurring between the actions of Essillor and the regulatory scheme of the health professions of Ontario in order to support RHPA application to online sales for the supply, but was not found to be provided by the "business act of physical delivery of material ordered to digital consumers in Ontario."

Therefore, this "will be a monopoly on the retail supply in Ontario for prescription eyewear by the use of the healthcare administrative law in Ontario for the licensing of optometrists and opticians."

The Ontario Court of Appeals decided that the selling of ophthalmic lenses in Québec through its Coastal website while not being licensed by the college does not infringe the Optometry Act (CQLRc0-7). This decision was taken by the Court of Ontario following the decision of the Quebec Court of Appeals.

The court found the Ontario judgment to be convincing because it was apparent that a patient is issued with prescription eyewear in conjunction with aspects of commercial sales, the prescription eyewear isn’t freely distributed, and one part of the eyeglasses—i.e., the frames—also clearly have more to do with fashion than healthcare.

The Significance of the Essilor Judgment

This was the Court of Appeals of Ontario’s initial decision to resolve the above-mentioned concerns. This judgment will certainly be applied beyond regulatory policies of the online selling and distribution of prescription eyewear throughout the provinces and the country.

However, in connection with the Ontario and British Columbia regulatory regimes, this decision was made in particular. The court has specifically indicated that, provided that two conditions are fulfilled, the regulatory regime for British Columbia's health profession permits the online sale of prescribed eyewear without having to fit or modify the delivery.

For eyeglasses, the foremost condition is that the supplier has to have an authorization document for the person, a recognized medical specialist’s prescription, or an optometrist or evaluation records that are obtained from an individual authorized with independent and automated refraction.

Secondly, the supplier is not able to dispense if a review record shows refractive errors or the changes in the amount of refractive error prescribed. Insofar as the delivery of prescription eyewear for customers to fulfill online orders that are without the provision of a fitting or adjustment service, Essilor complies with the regulatory regime of British Columbia.

Therefore, the broader consequences of this judgment are not yet certain.

Please contact a healthcare professionals lawyer if you are thinking of opening a business in or working in the online healthcare market and are not sure of the exact consequences of the existing regulations on your practice.