Selling professional services and products out-of-province

The jurisdiction of regulatory colleges to regulate the activities of professionals who operate in other provinces, but provide services or products in the regulator’s jurisdiction, took a twist with the recent decision of the Ontario Court of Appeal, that Ontario’s College of Optometrists did not have jurisdiction over an Internet-based provider of prescription eyewear to customers in Ontario: College of Optometrists of Ontario v. Essilor Group Inc., 2019 ONCA 265.

In an earlier lower-court judgment,the Ontario Superior Court decided that an Ontario college could regulate the activities of Essilor, whose “online” business operated physically in British Columbia, but which that court found was dispensing prescription eyewear to customers in Ontario, without involving an Ontario-licensed professional. We blogged about the earlier decision here.

The Ontario Court of Appeal found more recently that the Regulated Health Professions Act was not constitutionally applicable to Essilor, due to a lack of sufficient connection between its business and Ontario that would make it subject to Ontario laws.

Essilor argued on appeal that it did not perform the controlled act of “dispensing” in Ontario. Essilor accepts online orders from, and delivers prescription eyewear to, Ontario customers. The court decided, however, that the College does not regulate acts by customers. [74] The court found that delivery to Ontario constituted part of the controlled activity of “dispensing”, [90] but despite that, delivery was not enough to give rise to a substantial connection, given that delivery involved (according to the court) a commercial aspect involving no aspect of professional health care skills. [96]

The court recognized that Essilor met British Columbia requirements for dispensing without in-person fitting or adjustment on delivery, [106] but not Ontario requirements for fitting and adjusting. The court declined to find this failure of Essilor relative to Ontario requirements as supporting a substantial connection: “[109] …acceding to such an argument would effectively prohibit Ontario consumers from purchasing prescription eyewear online from a supplier in another province, where the supplier has complied with that province’s health professions regulatory regime, unless delivery of the product is channelled through the office of an Ontario optometrist or optician. Applying the constitutional principle of territorial limits on the scope of provincial legislative authority in that way would in effect sanction the creation of a monopoly over the importation of prescription eyewear into Ontario from other provinces.”

The reasoning of the court attracts some worrisome questions for regulators. For example, might “dispensing” include any advertising for services in Ontario used to attract orders from Ontario customers? Does the “commercial” nature of delivery of eyewear into Ontario remain the same if “delivery” is defined as a part of the dispensing process that includes post-delivery fitting or adjustment? Would “delivery” in that case include the service of patients in Ontario calling Essilor’s 1-800 phone line to talk to its B.C. regulated hearing instrument practitioners about their glasses after they received them in Ontario? In any event, the extent to which the court’s reasoning will apply in any given case outside of Ontario will depend also on the specifics of the applicable regulatory regime.

College of Optometrists of Ontario v. Essilor Group Inc., 2019 ONCA 265

Lisa C. Fong and Michael Ng