Nowadays you can buy almost anything online: clothing, food, glasses, jewelry, medication, mattresses, and the list goes on. So is there a problem with buying prescription eyewear online?
The College of Optometrists of Ontario thought so. The College launched a court application against Essilor Group Canada Inc. for operating the online retailer Clearly.ca and Coastal. Almost every action taken by Clearly and Coastal happened in British Columbia. Consumers would order the glasses and contacts online, using a prescription from their doctor, and the glasses and contacts would be shipped from British Columbia. By ordering online, consumers would miss out on having their pupillary distance tailor-measured by a professional for their specific eyewear.
In the case College of Optometrists of Ontario et al v. Essilor Group Canada Inc., 2018 ONSC 206, the College argued that there was a risk of harm in allowing prescription eyewear and contacts to be sold online. Essilor argued that the College was actually concerned with maintaining a monopoly in Ontario by preventing online retail from operating in Ontario.
Justice Lederer ruled that the company violated the Regulated Health Professionals Act by accepting orders for prescription eyewear from Ontario residents in British Columbia and delivering them to Ontario residents. “Eyeglasses and contact lenses are to be dispensed with the proper involvement of an optometrist or optician licensed in Ontario.”
The Ontario Court of Appeal reversed the decision of Justice Lederer. Justice Brown, writing for the court, reasoned in College of Optometrists of Ontario v. Essilor Group Inc., 2019 ONCA 265, that a customer’s placement of an order from an Ontario-located device does not amount to dispensing eyewear. At paragraph 126, Justice Brown writes that: “the act of delivering eyewear to a person primarily has a commercial aspect, not a health care one… 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.”
Justice Brown further wrote that applying the Regulated Health Professionals Act to the online sale of eyewear would grant a commercial monopoly to Ontario’s optometrists and opticians over the distribution of orders for prescription eyewear. If the legislature meant to do so, then it would need to legislate it explicitly.
I anticipate the courts will be dealing with similar cases by regulatory bodies in the years to come. As the internet changes the way services are delivered, regulatory bodies will continue to question whether:
- (a) there has been the unauthorized practice of medicine, law, engineering, teaching, accounting, and so on; and
- (b) if the public’s safety has been undermined by providing these services online.
In many instances, online services are a safe alternative to in-person services, like Telemedicine. In the book the Future of the Professions, Richard Susskind and Daniel Susskind write that “Many professionals seem to have lost sight of the reasons why we have personal interaction in the first place. It is a feature of the one-to-one nature of the traditional approach. As a consequence of its longstanding presence, it has gained an aura of indispensability. But we have to remember its origins – only as a feature … of sharing practical expertise. If, however, we can find better ways of sharing that expertise that require less personal interaction, then we should not defend this interaction for its own sake.”
(Views are my own and do not reflect the views of any organization.)