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.
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 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 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.
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.
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.
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.
The Chief Medical Officer of Health for Ontario has issued an updated Directive #2 (dated May 26, 2020) for Regulated Health Professionals in the province.
Pursuant to the updated Directive #2, all deferred non-essential and elective services by health care providers may be gradually restarted – subject to the rest of the requirements set out in the Directive.
The updated Directive #2 does not provide particularly detailed guidance to health professionals on how to proceed, likely because it applies to such a broad spectrum of health care and health professionals. It does, however, provide some principles to assist health care providers in making decisions as we enter this transitional period.
In addition to the mask and hand sanitizer shortages, Ontario’s response to COVID-19 highlights the need for more frontline health care workers. Each regulated health profession’s college responded differently, and we have discussed some of those changes in other posts to keep you apprised.
Today, we focus on the College of Physicians and Surgeons of Ontario (CPSO), who set out to increase the number of available and licenced physicians out on the frontlines through certificates of registration that authorize supervised practice of short duration. The temporary licences authorize practice for 30 days.
Undoubtedly, COVID-19 has affected how health professionals practice. Pharmacists across the country are not only experiencing changes in how they practice (for example, accepting emailed prescriptions, where appropriate) but the scope of their practice as well. The latter change is not permanent, although the disruptions in practice may be felt long after the COVID-19 emergency subsides.
On March 19, 2020, Health Canada issued a short-term section 56(1) exemption under the Controlled Drugs and Substances Act (CDSA) that would authorize pharmacists to prescribe, sell, or provide controlled substances in limited circumstances, or transfer prescriptions for controlled substances (the CDSA Exemption).