by Written on behalf of Wise Health Law April 17, 2019 4 min read

The various Ontario health professions and their members are licensed to practice by the province. Each such profession is self-governing through their respective colleges. The colleges are both authorized and regulated by the Regulated Health Professions Act (RHPA) and their respective statutes. The colleges, in turn, regulate the practices of their members.

With the advent of the internet and online sales and marketing, the issue of the applicability of such regulation to an out-of-province supplier of health-related services arises more frequently.

A Recent Example

The Ontario Court of Appeal (ONCA) considered one such contest recently in the case of College of Optometrists of Ontario v. Essilor Group. The Essilor Group (EG) is a manufacturer of lenses for eyeglasses. It operates two online retailers of eyeglasses and contact lenses based out of British Columbia. The online sale of glasses and contact lenses is a small market in Canada, amounting to approximately four (4) percent of sales nationally. It is, however, a growing business due to lower acquisition costs for the consumer.

Consumers need only enter their prescription and in the case of glasses, their pupillary distance. So someone in Ontario could do so to order eyewear. Their order would then be delivered to them at home. These are the two points of contact within Ontario, everything else is done elsewhere. The operation complies with the law of British Columbia.

The College's Position

The College of Optometrists of Ontario (the 'College') took the position that the EG's online sales amounted to a violation of the College's regulatory scheme. This was based on providing eyewear to Ontarians without the direct involvement of an optician, optometrist or physician in the dispensing process. They asked EG to agree to insist on obtaining a copy of each prescription from Ontario which would identify the prescriber and to deliver the finished product to that prescriber’s place of business. EG refused, no doubt as it would add cost and inconvenience to their customers.

The Legal Framework

The College relied on section 27 of the RHPA. It reads as follows:

27 (1) No person shall perform a controlled act set out in subsection (2) in the course of providing health care services to an individual unless,

(a) the person is a member authorized by a health profession Act to perform the controlled act; or

(b) the performance of the controlled act has been delegated to the person by a member described in clause (a).

Section 27(2) of the RHPA lists the “controlled acts”. It states, in part:

(2) A “controlled act” is any one of the following done with respect to an individual:

9. Prescribing or dispensing, for vision or eye problems, subnormal vision devices, contact lenses or eyeglasses other than simple magnifiers.

The word 'dispensing' is not defined in the RHPA. The College took the position that EG was dispensing in Ontario. They did not provide evidence of any harm caused to Ontarians but rather relied on the presumption that if a person (EG) contravenes the RHPA then harm to the public is presumed based on the ONCA’s decision in Wadden v. College of Opticians of Ontario.

The Retailer’s Position

EG's position was twofold. First, they denied that their online sales business amounted to the controlled act of “dispensing”. Secondly, they denied that there was a sufficient connection between Ontario and EG's business model to support the application of Ontario’s regulatory scheme to an out-of-province business entity.

Disposition

The key issue was the constitutional one of sufficient connection. The leading case was the Supreme Court of Canada (SCC) decision Unifund Assurance Co. v. Insurance Corp. of British Columbia. The decision recognized that a brick and mortar presence was no longer the only measure.

Later formulations of the extraterritoriality rule put the focus less on the idea of actual physical presence and more on the relationships among the enacting territory, the subject matter of the law, and the person sought to be subjected to its regulation. The potential application of provincial law to relationships with out-of-province defendants became more nuanced.

There is no single standard defining what is a sufficient connection. However, the court would not accept either party's extreme position that either it all had to take place in Ontario or that only one step did. It is not a numerical exercise alone but requires a more qualitative inquiry. In this case, the only activity taking place in Ontario was delivery. The ONCA determined that this was solely a commercial activity and not one of health care.

The fact that EG operated a store in Toronto in addition to the online stores based in BC also did not provide a sufficient connection. The store complied with the RHPA by having an optician present.

Finally, the fact that no end of the line fitting or adjustment service was provided, as required under the RHPA, was suggested as being a sufficient connection by omission. This too was rejected by the ONCA as it would effectively stop the online sales except through the suggested funnel of a monopoly in having all delivery made to the prescriber and not the customer's home.

Guidance for Regulated Health Professionals in Ontario

At Wise Health Law, our lawyers have significant experience navigating the legal frameworks of the various colleges and provide our clients with exceptional guidance and advice on a variety of regulatory matters. We have been recognized for our knowledge and excellent work by regulatory colleges, professional associations, and other lawyers. To find out more about how we can help, contact us online, or at 416-915-4234for a consultation.



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