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Wednesday, May 08, 2019 @ 7:53 AM  

Lexis Advance® Quicklaw®
Appeal by Essilor Group from an order declaring it was in breach of the Regulated Health Professions Act and prohibiting it from dispensing prescription eyewear except where the dispensing was performed by a member of the respondent Colleges. The appellant carried on business as an online retailer of contact lenses and eye glasses. Its head office was in Quebec. Its online business was conducted in British Columbia. It had one store located in Toronto. The application judge found the appellant breached s. 27 of the Act by dispensing prescription eyewear in Ontario through its websites.

HELD: Appeal allowed. The application judge incorrectly held that s. 27 of the Act was constitutionally applicable to the appellant’s online sales of prescription eyewear to customers in Ontario. The application judge erred in concluding the placement of an online order by a customer in Ontario constituted part of a controlled act performed by the appellant. The mere delivery in Ontario of an order for prescription eyewear that had been processed in compliance with the British Columbia regulatory regime, without more, did not establish a sufficient connection between the appellant’s online sales and the controlled acts proscribed by s. 27 of the Act. The discrete act of delivering eyewear to a person primarily had a commercial aspect, not a health care one. The appellant’s in-store regulatory-compliant transactions could not establish a sufficient connection required to apply s. 27(1) of the Act to its online business.

College of Optometrists of Ontario v. Essilor Group Canada Inc., [2019] O.J. No. 1713, Ontario Court of Appeal, R.G. Juriansz, D.M. Brown and G. Huscroft JJ.A., April 4, 2019. Digest No. TLD-May62019008