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Do Ontario regulatory laws apply to BC retailer’s online sales to Ontario residents? Ontario Court of Appeal overturns lower court ban on online sales of prescription eyewear to Ontario residents

On April 4, 2019, the Ontario Court of Appeal overturned the Ontario Superior Court of Justice’s finding that online sales of prescription eyewear by Essilor Group Canada Inc. (Essilor) to Ontario residents violated s. 27(1) of the Regulated Health Professions Act (RHPA). The lower Court had found that these sales involve a controlled act not performed by an optician or optometrist: College of Optometrists of Ontario and College of Opticians of Ontario v Essilor Group Canada Inc, 2019 ONCA 265.

Essilor conducts its online business in BC, but sells its products to the residents of other provinces, including Ontario. In BC, any entity may dispense prescription eyewear; in Ontario, only optometrists and opticians may do so. At the lower Court level, the College of Optometrists of Ontario and the College of Opticians of Ontario successfully sought a declaration that Essilor breached the RHPA and an injunction against Essilor on the basis that it was dispensing eyewear in Ontario without involving an Ontario-licensed health care provider.

The dispositive issue was whether Essilor’s sales to Ontario residents were sufficiently connected to Ontario such that Ontario legislation could be applied to a BC entity. The Court found that the sole act performed by Essilor in Ontario in the course of its online sales was the delivery of finished prescription eyewear. Although this act exists on the “continuum of activities” that constitute dispensing, the Court found that delivery is a commercial element of dispensing that requires no application of professional health care skills. The mere act of delivery therefore did not, by itself, establish a sufficient connection to Ontario so as to bring Essilor’s online transactions within the ambit of the RHPA. Accordingly, the Colleges’ applications were dismissed.