Originally Posted by
Chris Ryser
As far as I understanf they are purly Canadian, they seem to have other companies elsewhere.
BC regulatory body , took a stab at it but they & their "team" flubbed it,in my opinion . If BC changes their legislation and wording of their act then they might have been able to succeed. Read the judges decision http://www.canlii.org/eliisa/highlig...08bcsc617.html. You will wonder why they even went to court with such poor presentation .
If another car hit your car and you sued the driver for damages , the first thing in court for you to do is PRESENT EVIDENCE . Identify positively who the driver was (a police report) ; establish the quantity of the damges (perhaps 3 body shop written estimates ) and so on .
Well, they failed to identify the optician , the opticians name , the opticians work schedule , the current status of the opticians license , the damages and harm done , the risk of health safety to the public , and they failed to prove that it was against the regulations because of the poor wording of their act . The judge suggested they change their act and consider using more exact wording like Alberta's .
In other words they were , in my opinion, totally inept. They deserved to lose and they did .
When you read this, does it not seem to hinge on there being an optician or contact lens fitter supervising ? Did they establish that ? The judge accepted the respondents' claim that there was an optician /contact lens fitter supervising BECAUSE the College did not challenge it !!!!
In my humble opinion they LOST their case right then and there !
I am no lawyer but where do they prove or disprove that there was or was not a licensed BC optician/ contact lens fitter present ? Isn't that the major part of their case ?
Here is a small excerpt from the judges decision :
[13] The parties have not been able to agree on whether or not the respondents should identify the optician working for Coastal by name. No motion was brought to compel the respondents to produce the name of the supervising optician, nor is this relief sought in the petition. The respondents have apparently offered to try to reach some accommodation with the petitioner in this regard, but no agreement was reached before this hearing.
[14] The petitioner has not asked the Court to draw any inferences from the failure to identify the name of the supervising optician. The petitioner did not challenge the fact that such a person is employed by Coastal. Therefore, I accept the respondents' evidence that a licensed optician, who is a contact lens fitter, is on staff at Coastal supervising the sales of contact lenses at issue in this proceeding.
45] The petitioner did not allege in its petition that the respondents breached s.5(4)(c) of the Regulation, or that the level of supervision by the contact lens fitter was inadequate. In any event, for clarity, I conclude that the College has not made out a case that s. 5(4)(c) was contravened by the respondents.
[46] The petitioner argued that public safety and health is at issue in this case due to the seller's failure to have a licensed optician who is a contact lens fitter check the original written record of the prescription of purchasers of contact lenses. It was argued that a check of the original written prescription record is necessary in case the purchaser has made a mistake in transcribing the prescription on the online form, as happened with the respondents in the case at bar.
Conclusion
[58] The College summarized the relief it seeks as "an injunction to prevent the sale of prescription contact lenses" by the respondents, who are not licensed opticians in the province of B.C. Yet, nothing in the governing legislation prohibits the sale of contact lenses by unregistered persons. Rather, what the legislation prohibits is an unregistered person filling a prescription by "fitting and dispensing" contact lenses: s. 5(3) of the Regulation. The respondents are not doing this and, accordingly, they are not contravening the Regulation.
[59] The legislation allows an unregistered person to refill a prescription by dispensing contact lenses if the person is supervised by a contact lens fitter, provided that the person does not fit the contact lenses: section 5(4)(c) of the Regulation. This is what the respondents have done.
[60] There remains an outstanding issue of contract, namely who is the seller when a purchaser buys contact lenses online through the respondents' web site. It is not necessary to determine this contract issue given the conclusion I have reached that the conduct at issue is not in contravention of the law.
[61] The petition is dismissed with costs to the respondents.
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