“Dispensing is qualitatively different than selling”............................

WHY WERE OPTOMETRISTS IN QUEBEC UNSUCCESSFUL IN BLOCKING INTERNET SALES?

A similar action taken by the Ordre des optometrists du Quebec v. Coastal Contacts Inc. ruled in favour of the company against the Ordre (College) in December 2014. What was different then and there?

Turns out, words do matter! The Quebec case is distinguishable in the detailed definition of the practice of Optometry in Quebec’s code, which includes the words “sale and replacement of ophthalmic lenses.” The decision in the Quebec case is driven by the word “sale”. The law of British Columbia ruled the day since it was determined that the sales contract between the company and the resident was substantially entered into in BC, and that the product was only “delivered” to a resident in Quebec.

“Dispensing is qualitatively different than selling”,wrote the Justice. As such, notwithstanding the position held by the Companyand their attempt to draw parallels with various classes of pharmaceuticalagents, the Judge returns to the basic tenets of the Ontario Legislation;“…what professional (optometrists and optician) is responsible for providingthe health care associated with obtaining eyeglasses and contact lenses(“prescribing”, ”preparing”, ”fitting”, “adjusting”, “adapting” over theinternet from Coastal and Clearly? I repeat, apparently this is not one.


NO HARM, NO FOUL

Clearly’s counsel additionally submitted that controlled acts should be narrowly interpreted and that evidence of “risk of harm” is a requirement of the Colleges; “Despite the recommendations of two seasoned regulatory law firms, the colleges have not introduced any evidence of the risk of harm.”
The Court however held that the risk of harm assessment is intrinsic to the controlled act (“Dispensing”) definition in the related legislation and that the Court has no role in the risk assessment of harm. To suggest otherwise, is, according to the decision, “…to negate the value of the regulation.”


SO, NOW WHAT?

Clearly is appealing the decision. While the appeal process is underway, Clearly plans to continue to service customers in Ontario.
Clearly representatives advised the following; “Clearly is committed to making vision care accessible worldwide and believes that the Internet is complementary to other distribution channels”, says Clearly Managing Director Arnaud Bussieres. “Clearly is well-known for accessibility, affordability, consumer satisfaction and quality of service throughout its eighteen years in business,” added Bussieres.


According the company, Clearly has a history ofengaging in dialogue with optometrists and opticians across Canada to findareas of collaboration and ways to provide better products to consumers. “Wedon’t see this decision impacting our progress and ambitions of workingdirectly with eyecare professionals to address opportunities for additionalvision care access in the market,” commented Bussieres.
The Ontario Association of Optometrists (OAO), uponrequest, indicated they were “not in a position” to comment, given that theapplication was brought on jointly by the Collegeof Optometrists and College of Opticians.

A statement from the Ontario Association of Opticians was not available at the time of publishing.

Source: https://eyecarebusiness.ca/why-an-on...gainst-clearly