Yesterday an important decision was rendered by the Ontario Superior Court on the cross-border internet practice of professions. In College of Optometrists of Ontario v. Essilor Group Canada Inc., 2018 ONSC 206, two regulators (the College of Opticians of Ontario was also a party) obtained an injunction against a major internet supplier of contact lenses and eyeglasses requiring it to comply with Ontario rules relating to dispensing eyewear. Essilor (the parent of Clearly and Coastal) operated out of British Columbia. Essilor tried to portray the application as turf protection to guard the commercial interests of optometrists and opticians. The Court viewed that argument as irrelevant; the issue was whether the online dispensing of lenses and eyeglasses was permitted by the legislation.
The Court first addressed whether the actions of Essilor breached the Ontario legislation by “dispensing” eyewear, which is a controlled act. The Court noted that while the controlled act scheme in the legislation was designed to prevent harm, one had to interpret the language of the provision and not conduct a risk-assessment of the specific conduct in the case. The Court concluded “that ‘dispensing’ is not a singular act but a series of acts that encompass the making, adjustment (fitting) and delivery of” eyewear. Under the Essilor business model, no Ontario-registered practitioner was responsible for performing these functions. That outcome was contrary to the purpose of the provisions (i.e., ensuring the provision of proper health care by qualified and authorized professionals). It was evident to the Court that Essilor was making and delivering contact lenses and eyeglasses.
The second issue was whether Ontario legislation applied in circumstances where almost everything Essilor did occurred in British Columbia. The Court indicated that it should not take an “old-world understanding of place and time”. The location of the action should not be assessed on a purely commercial transaction basis (i.e., where was the contract made?), as is done under the Civil Code in Quebec. Rather, location should be determined in a manner consistent with the purpose of the provisions. Under this approach the Court looked for whether there was a “sufficient connection” between the conduct and Ontario. The Court said that a “purposive analysis of the legislation demonstrates that this situation is best characterized not as a contract for the sale of eyeglasses, but as the delivery of health care.”
The Court engaged in a fascinating discussion of the location of events over the internet. It cited authorities viewing such interactions as occurring “both here and there”. The Court concluded that where the order was placed by an individual in Ontario and the eyewear was received in Ontario, presumably to be used in Ontario, there was a sufficient connection to Ontario. “To find otherwise would mean the eyeglasses are provided without obligation to adhere to Ontario regulation.” The Court was also not swayed by the fact that ordering lenses and eyeglasses online was permitted in British Columbia; such a change in the law in Ontario should be done by the legislature, not the courts.
In passing, the Court noted that the regulatory rules of Ontario also applied to internet practice within Ontario. Internet providers that are based in Ontario and dispense eyewear to Ontario clients need to comply with all Ontario rules.
This case provides some urgently needed clarity on the issue of cross-border internet practice.
[NB This decision was reversed on appeal at 2019 ONCA 265. Leave to appeal to the Supreme Court of Canada was refused at 2019 CanLII 96491 (SCC). For more information see: https://sml-law.com/wp-content/uploads/2018/01/Greyar235.pdf.]