BC-Court of Appeal decision about online CL

[Comma]

From http://www.cobc.ca/

"FOR IMMEDIATE RELEASE
October 29, 2009
College of Opticians of British Columbia

Court of Appeal Decision About the Safe Dispensing of Contact Lenses

Vancouver – The College of Opticians of British Columbia (COBC) today welcomed the decision of the Court of Appeal on The College of Opticians of British Columbia v. Coastal Contacts Inc. and Clearly Contacts Ltd., which found that contact lenses should not be treated as ‘over the counter’ products and that a prescription is required in order to dispense contact lenses.

“We are pleased with the Court’s decision that protects consumer safety and requires accurately dispensed contact lenses,” said COBC Chair Kent Ashby. “Protection of one’s eyesight and buying contact lenses should never be a ‘buyer beware’ proposition.”

The decision found that the respondents, both sellers of contact lens over the Internet, had failed to comply with the regulations governing the safe dispensing of contact lenses, but has also given the companies six months to establish a business model that does conform to the regulations.

“The goal of the COBC is to have the respondents operate within the law and the standards of practice. We regulate to ensure that individual practitioners and companies provide the highest standard of vision care and accountability, “said Ashby. “Our hope is that both companies come forward with a method of operation that meets the regulated standards for safe practice so that they may continue to serve customers”.

In BC contact lenses may be obtained, with a prescription, from a regulated health professional such as an optician, optometrist, or ophthalmologist. The College of Opticians of British Columbia regulates and improves the practice of opticians in the public interest by ensuring that BC Opticians provide quality professional care to help people achieve better vision"


Let ear about eyeglasses now. Next step ?

[Refractingoptician.com]

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.

[Comma]

Thanks a lot for the clarification !

I wasn't really thinking of a win. Just something like maybe a beginning.

That was only a quick and very late "copy-paste", so not a in deep reading of this article. But I should before posting.

Reading your post makes me realize you are absolutly right.
Too bad !

Thanks again

[Refractingoptician.com]

Originally Posted by Comma

Thanks a lot for the clarification !

I wasn't really thinking of a win. Just something like maybe a beginning.

That was only a quick and very late "copy-paste", so not a in deep reading of this article. But I should before posting.

Reading your post makes me realize you are absolutly right.
Too bad !

Thanks again

It's a crack in the ice , but not the right way around . It might be said that some press releases are unfortunately sugar coated .

[rdjeff]

While on first blush this might not appear as a flat out win. It does put some distinct constraints on internet dispensing in Canada. More than any other jurisdiction has done to date. While Alberta has been able to stop over the counter dispensing of contact lenses this is the first jurisdiction in North America that has actually won a case to put some constraints on internet dispensing.

I see this as a win because I know that the internet dispensing companies absolutely hate the hoops that they must jump through in order to comply.

Think about it.

[Refractingoptician.com]

Originally Posted by rdjeff

While on first blush this might not appear as a flat out win. It does put some distinct constraints on internet dispensing in Canada. More than any other jurisdiction has done to date. While Alberta has been able to stop over the counter dispensing of contact lenses this is the first jurisdiction in North America that has actually won a case to put some constraints on internet dispensing.

I see this as a win because I know that the internet dispensing companies absolutely hate the hoops that they must jump through in order to comply.

Think about it.

Or you could take the viewpoint that it was not legal before the court case , but now the internet sellers have set a preecedent in their favor .

If risk of harm had been established , would 4 judges have been in favor of internet sellers ? I don't think so ...!!

Think about it . So why did the judges attach so much emphasis to the "risk of harm " and the "timeliness" while the COBC attached none ?

[Oedema]

Okay, so i haven't exactly been following this thing at all... so what is all this about "over the counter" sale of CL's? What does that mean exactly? Patients entering -1.00 OU for the cheapest brand of CL and getting them without ever having a fitting done?

[LandLord]

Is anyone aware if these 2 online suppliers are selling lenses without a prescription? or are they requiring an Rx from customers?

[Comma]

Originally Posted by LandLord

Is anyone aware if these 2 online suppliers are selling lenses without a prescription? or are they requiring an Rx from customers?

Of course they are not asking for any Rx (or copy of it) !!!

Customers just enter their Rx themselves and that's all.
They would have to hire more people to do so, so raise their prices

They don't even calculate the vertex compensation

There is some kind of disclaimer regarding these things if I remember.

[Oedema]

So i just looked at their website, and its say that all US customers have to have their Rx verified. Problem with that is their verification process is somthing called passive verification, if they don't get a yes/no within 24 hours they fill it anyways. These companies are notorious for making it either very difficult or impossible to actually respond, either their fax number is out of service/busy, or they use one inane on the line telephone system.

As for Canada, well i have no idea if they even attempt verification.

[Refractingoptician.com]

Originally Posted by oedema

so i just looked at their website, and its say that all us customers have to have their rx verified. Problem with that is their verification process is somthing called passive verification, if they don't get a yes/no within 24 hours they fill it anyways. These companies are notorious for making it either very difficult or impossible to actually respond, either their fax number is out of service/busy, or they use one inane on the line telephone system.

As for canada, well i have no idea if they even attempt verification.

Read the court case gentlemen ! Try dealing with that set of data .

[kitspoint]

With complete respect to my fellow posters I understand the BC College argument which the Court of Appeal affirmed is as posted below. Further I suspect that many of the optician viewers of this site who have made submissions on our behalf to the Government of Nova Scotia, the Ontario Health Professions Regulatory Advisory Counsel , the Alberta Eye Care Co-ordinating Council, the BC Health Professions Council, the Manitoba Law Reform Commission, the Government of Manitoba Review of Health Professions and many others including the Canadian "Competition Bureau" fully understand the argument. Which is; why introduce an argument that the governments, the law makers, have already accepted. I quote.

[I][I][30] Once a breach of a regulatory statute has been established, actual damage need not be shown. Harm to the public is presumed from the breach of the law, and the public interest in having the law obeyed ordinarily outweighs hardship to the respondent: Robert J. Sharpe, Injunctions and Specific Performance, 2d ed. Looseleaf (Toronto: Canada Law Book, 1992) at 3.150 - 3.160, 3.265. In College of Opticians of Ontario v. John Doe 1 (c.o.b. Great Glasses), [2006] O.J. No. 5113, 154 A.C.W.S. (3d) 335 (Sup. Ct.), Spies J. expressed the principle in this manner:

[51] The assessment of irreparable harm has a special status in injunction proceedings brought by the Attorney General or other statutory authorities to enforce obligations imposed by statute. In such cases, the need to demonstrate harm is attenuated by the fact that contraventions of the law are inherently contrary to the public interest and are presumed to cause harm or create a risk of harm:

The court will rarely conclude that the public interest in having the law obeyed is outweighed by the hardship an injunction would impose upon the defendant. It seems clear that where the Attorney General sues to restrain breach of a statutory provision and is able to establish a substantive case, the courts will be very reluctant to refuse on discretionary grounds. Saskatchewan (Minister of the Environment) v. Redberry Development Corp., [1987] 4 W.W.R. 654 (Sask. Q.B.) at para. 18, aff'd [1992] 2 W.W.R. 544 (Sask. C.A.)

I don't know how to add the "beer chug" gif but here's to the "white hats" for a change

[Refractingoptician.com]

Originally Posted by kitspoint

With complete respect to my fellow posters I understand the BC College argument which the Court of Appeal affirmed is as posted below. Further I suspect that many of the optician viewers of this site who have made submissions on our behalf to the Government of Nova Scotia, the Ontario Health Professions Regulatory Advisory Counsel , the Alberta Eye Care Co-ordinating Council, the BC Health Professions Council, the Manitoba Law Reform Commission, the Government of Manitoba Review of Health Professions and many others including the Canadian "Competition Bureau" fully understand the argument. Which is; why introduce an argument that the governments, the law makers, have already accepted. I quote.

[I][I][30] Once a breach of a regulatory statute has been established, actual damage need not be shown. Harm to the public is presumed from the breach of the law, and the public interest in having the law obeyed ordinarily outweighs hardship to the respondent: Robert J. Sharpe, Injunctions and Specific Performance, 2d ed. Looseleaf (Toronto: Canada Law Book, 1992) at 3.150 - 3.160, 3.265. In College of Opticians of Ontario v. John Doe 1 (c.o.b. Great Glasses), [2006] O.J. No. 5113, 154 A.C.W.S. (3d) 335 (Sup. Ct.), Spies J. expressed the principle in this manner:

[51] The assessment of irreparable harm has a special status in injunction proceedings brought by the Attorney General or other statutory authorities to enforce obligations imposed by statute. In such cases, the need to demonstrate harm is attenuated by the fact that contraventions of the law are inherently contrary to the public interest and are presumed to cause harm or create a risk of harm:

The court will rarely conclude that the public interest in having the law obeyed is outweighed by the hardship an injunction would impose upon the defendant. It seems clear that where the Attorney General sues to restrain breach of a statutory provision and is able to establish a substantive case, the courts will be very reluctant to refuse on discretionary grounds. Saskatchewan (Minister of the Environment) v. Redberry Development Corp., [1987] 4 W.W.R. 654 (Sask. Q.B.) at para. 18, aff'd [1992] 2 W.W.R. 544 (Sask. C.A.)

I don't know how to add the "beer chug" gif but here's to the "white hats" for a change

All of the above beiing said and duly noted , the judges still said :

"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. "