TORONTO — Ontario regulators have no right to block a company legally operating elsewhere in Canada from selling prescription eyewear to online customers in the province, an Appeal Court ruled on Thursday.
The decision means Ontario consumers can continue to order corrective glasses and contact lenses from British Columbia-based online retailer Essilor, which sells Coastal and Clearly products.
“The mere delivery in Ontario of an order for prescription eyewear that has been processed in compliance with the British Columbia regulatory regime, without more, does not establish a sufficient connection between Essilor’s online sales and the controlled acts proscribed by (Ontario’s laws),” the Appeal Court ruled.
“Where the supplier of the prescription eyewear operates in another province and complies with that province’s health-professions regulatory regime when filling an online order placed by an Ontario customer, the final act of delivering that product to the Ontario purchaser does not amount to the performance of a ‘controlled act’ by the supplier.”
The case arose in December 2016 when regulators in Ontario — the colleges of Optometrists and Opticians — alleged Essilor was acting illegally by accepting orders for prescription eyewear through its websites and shipping the products to patients in Ontario. It wanted the courts to end the practice.
In essence, the colleges argued only licensed professionals in Ontario could dispense prescription eyewear in the province. The colleges offered no evidence anyone was actually harmed by Essilor’s practices.
In January 2018, Superior Court Justice Thomas Lederer sided with the colleges. He ruled the company was dispensing corrective eyewear in Ontario and concluded the province’s rules should apply. Lederer ordered Essilor to stop the sales.
Essilor Group Canada, whose head office is in Quebec but runs its online operation out of B.C., appealed, also winning permission to continue its sales pending the outcome of the case. It argued that fulfilling Ontario orders did not amount to the controlled act of dispensing prescription eyewear.
The subsidiary of France-based international eyewear giant, Essilor International, also argued Lederer wrongly decided that Ontario’s regulations applied to its online sales.
According to court filings, the Canadian prescription eyewear market is estimated to be worth more than $4.5 billion a year. The Appeal Court noted that eyewear is part of a trend toward online retail sales.
“The explosion in the volume and variety of online consumer transactions over the past decade has included the emergence of an online market for the purchase and sale of prescription eye glasses and contact lenses,” the court said. “In some jurisdictions, friction has emerged between the online vendors of such products and the professional health-care bodies that historically have regulated the sale.”
In siding with Essilor, the appellate court found the company was acting lawfully in its home province, which has a similar regulatory framework to Ontario. Nor was it “dispensing” eyewear in Canada’s most populous province by fulfilling orders in B.C. and shipping them across the country.
Leaning on Quebec case law, the court also noted that providing prescription eyewear is a transaction with both health care and commercial aspects.
Barring the online sales would amount to using Ontario’s Regulated Health Professions Act to give the province’s optometrists and opticians a monopoly over the commercial importation of prescription eyewear.
That could only happen if the legislature passed a law to clearly allow such a monopoly — something current regulations do not do, the court said.
Colin Perkel, The Canadian Press