February 18, 2018

“In the modern day, not everything is purchased by going to a store…”

Health Law
Professional Regulation

“In the modern day, not everything is purchased by going to a store…”

This sentence, which begins the decision in the Ontario Essilor case, signals the basis of the jurisdictional issues that professional regulators face when health professionals provide online services or products across provincial borders: College of Optometrists of Ontario v. Essilor Group Canada Inc., 2018 ONSC 206.

In this case, the Respondent, Essilor Group Canada Inc. (“Essilor”) is the largest manufacturer of ophthalmic lenses in the world.  It boasts providing products to approximately 1 billion people world-wide. In Canada, its business includes selling products online to clients in Ontario. However, the preparation and delivery of eyeglasses occurs in British Columbia. Vancouver is where Essilor’s head office, management teams, human resources, marketing groups and information technology groups are located. Online orders are sent to and processed in a laboratory and distribution centre in Vancouver. Eyeglasses are assembled in Vancouver or a facility “outside of Canada”.  Contact lenses are purchased from the U.S. but stored in Vancouver. Product is shipped to customers from a distribution centre in Vancouver. The quality assurance team and the call centre that addresses questions from clients are located in Vancouver.

The College of Optometrists of Ontario and the College of Opticians of Ontario (the “Colleges”) sought an injunction before the Ontario Superior Court directing Essilor to cease prescribing or dispensing contact lenses or eye glasses in Ontario. None of the Essilor service providers were registrants of these Colleges.

One of the main issues before the court was whether Essilor is subject to Ontario legislation, namely the Regulated Health Professions Act. Essilor’s position was that Ontario legislation does not apply, as all of its commercial activities, including where contracts form and ownership transfers, occur in British Columbia.  The court commented however that this was an “old world understanding of time and place”, and one based on the “transaction as a purely commercial one”.  Such an interpretation, viewed from a public protection context, could result in the respondent avoiding the protections afforded by professional regulation.

To ascertain whether Ontario’s public protection legislation applied in this multi-jurisdictional instance of modern online commerce, the court determined that a “sufficient connection” test should apply. The test requires a sufficient connection between the enacting jurisdiction, the subject matter of the legislation, and the individual or entity to be regulated. The court noted that the test is largely context-driven, and that in this case, online sales is an arena where no territorial limits exist. The court found that the customers were in Ontario, resided in Ontario, ordered eye-wear and had that eye-wear delivered to them in Ontario where they subsequently used the eye-wear. The court therefore found a sufficient connection between Essilor’s commercial activities and the Ontario for an Ontario court to order an injunction.

This case illustrates professional services sold or provided on online may attract a liberal and purposive analysis as to which jurisdiction(s) may regulate. The fact of where a contract concludes or where a transfer of title and ownership occurs will not be decisive. Instead, the main focus may be on where professional services are delivered. Such a context driven test will likely mean that multiple jurisdictions may have powers to superintend professional activities sold through the Internet to clients in various provinces.

College of Optometrists of Ontario v. Essilor Group Canada Inc., 2018 ONSC 206