Think again! This is NOT the win that you want and think it is .
From the web site : http://www.canlii.org/eliisa/highlig...09bcca459.html
[31] Thus, having found the respondents in breach of the Regulation is sufficient to justify an order enjoining them from dispensing contact lenses under s. 5(4)(c). Nevertheless, the Court retains discretion to refuse an injunction in exceptional circumstances. In my view, several unique factors in this case militate in favour of exercising that discretion by granting the injunction sought, but suspending its operation for approximately six months, until May 1, 2010.
[32] First, the appellant has provided no evidence of actual harm to the respondents’ customers arising from the respondents’ practices to date. Nor have they treated this as a matter of urgency; the petition was filed over two years ago.
[33] Second, as the chambers judge noted, the object of the Regulation is to protect the public in two ways. First, it ensures that contact lenses are only dispensed through qualified professionals. Second, it seeks to preclude a wide monopoly that would unnecessarily drive up costs for consumers on sales that do not require significant professional intervention. In my view, Internet sales of optical lenses are consistent with that second objective. Section 6(5) of the Regulation entitles customers to receive copies of their prescriptions. In this age of electronic communication, the respondents may be able to devise a business model that satisfies the Regulation. I am persuaded they should be given an opportunity to do so, rather than be required to cease operations peremptorily.
[34] Finally, the appellant at para. 47 of its factum suggests that it is open to the respondents to seek legislative change to accommodate their business model. In my view, their business should not be shut down until they have had six months to pursue that possibility.
[35] I would accordingly allow the appeal and order that the respondents are enjoined from refilling a prescription by dispensing contact lenses pursuant to s. 5(4)(c) of the Regulation unless and until they are in receipt of a “prescription” as defined in s. 1 of that legislation. I would, however, suspend the operation of that injunction until May 1, 2010.
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