In summary .. the court declare that provincial law of optometry is applied in Quebec only .. and sales made by Coastal are made in BC, the court reject the case of the Quebec optometry board. Very bad news for provincials rules.
http://citoyens.soquij.qc.ca/php/dec...C3A77B3&page=1
It was about time that one of the regulatory bodies challenged them in court. Unfortunately the decision did not go in our favour. What can we do next? There is a two tier dispensing system where one is regulated and the other is not. Perhaps the Great Glasses business model and Bruce Bergez are visionary.!!! It makes me wonder if nation wide deregulation is around the corner. The consumer may have some price relieve but at the expense of quality and optimum vision. How many other retail sectors have been effected the same way. Bag your own groceries, pump your own gas and check the oil, scan the bar codes at the check out. No knowlegable people to serve you. We will become Mc opticians for Mc wages. Why bother investing in an education to become an optician. It is a sad day.................I need a beer.
SUPERIOR COURT
CANADA
PROVINCE OF QUEBEC
DISTRICT
MONTREAL
No:
500-17-055516-101
DATE:
On December 3, 2014
____________________________________________________________ __________
UNDER THE HONOURABLE PAUL MAYER, JCS
____________________________________________________________ __________
COLLEGE OF MIDWIVES OF QUEBEC
APPLICANT
c.
COASTAL CONTACTS INC.
9130-4329 QUEBEC INC. (Doing business under the name
MANAGEMENT of Progex)
DEFENDANTS
and
Oktane DESIGN INC.
GETTING INVOLVED
_______________________________________________________
1. INTRODUCTION
[1] The motion for declaratory judgment of the College of Optometrists of Québec (" the Order ") raises an important and topical issue of public interest, since it involves an extremely popular mode of trade in The era of the Internet.
[2] The Order seeks a declaration that Coastal Contacts Inc. (" Coastal ") and 9130-4329 Québec Inc. (" Progex ") contravene the Optometry Act [1] (the " LSO ") and the Professional Code [2] (the " Code ") because they carry on optometry selling ophthalmic lenses in Quebec through their websites without being registered with the College. The applicant submits that the defendants engaged in professional activities reserved for members of the Order or acting so as to give reason to believe that they are.
2. FACTUAL BACKGROUND
2.1 The parties
[3] The Order is a professional body established under the LSO and designated as such by the Code.
[4] Coastal is a commercial company with its head office and one branch in Vancouver, British Columbia. She has no business locations in Quebec. It operates under the domain names " www.coastalcontacts.com "and" www.clearlycontacts.ca 'websites through which it announced to sell and sells ophthalmic lenses (contact lenses and prescription glasses).
[5] ophthalmic lenses Coastal sales business is subject and in accordance with the legislation in force in British Columbia, between others, the Health Profession Act [3] , the Optometrists Regulation [4] and Opticians Regulation [5] .dropoff window
[6] Ophthalmic lenses advertised and offered for sale through websites Coastal may be purchased by residents of Quebec.
[7] Progex is a commercial company with its head office and an establishment in Québec. She holds the domain name " www.verredecontact.com "and" www.lunettesrabais.com ". This company specializes in shopping at a discount of optical products through the Internet. Once a product is chosen on its websites, customers are redirected to the Coastal site which is responsible for ordering, payment and delivery.
[8] The respondent, Oktane Design Inc. is a commercial company with its head office and an establishment in Québec. She is the owner of a computer server hosting the domain names " www.verredecontact.com "and" www.lunettesrabais.com "whose Progex Management holds.
[9] Progex Coastal Management and are linked by a service contract where Progex Management connects these sites to those held by Coastal.
2.2 Sales of contact lenses and glasses in this case
[10] On 13 October 2009, Mr. Steve Moscovitch, acting under the fictitious name of " Steve Cann "has obtained contact lens prescription dated May 7, 2009 [6] , all from merchant of Montreal through the website " www.clearlycontacts.ca " [7] . That same day, a confirmation of the order transmitted to it [8] . Contact lenses were delivered to his address in Montreal.
[11] On October 29, 2009, Mr. Moscovitch, acting under the fictitious name of " Michael Morin , "has purchased contact lenses prescription dated May 7, 2009 [9] , all from merchant of Montreal through websites " www.verredecontact.com "and" www.coastalcontacts.com " [10] . The same day, an order confirmation is sent to it [11] . Contact lenses were delivered to his address in Montreal.
[12] On November 12, 2009, Mr. Moscovitch, acting under the fictitious name of " Michael Morin , "procured glasses prescription dated January 14, 2009 [12] , the while negotiating through websites " www.lunettesrabais.com "and" www.coastalcontacts.com " [13] . The same day, an order confirmation is sent to it [14] . The glasses were received by him at his address in Montreal.
3. POSITIONS OF THE PARTIES
3.1 The Order
[13] The College maintains that Progex Coastal and are not members of the College or the College of Opticians of Quebec and do not have the right to practice as an optometrist or optician orders in the Province of Quebec.
[14] Article 16 of the LSO reads:
" 16. constitutes the practice of optometry any act other than the use of drugs whose purpose and vision that relates to eye examination, analysis of their function and evaluation of visual problems and orthoptics, prescription, fitting, adjustment, sale and replacement of ophthalmic lenses. "
" 25. Subject to the rights and privileges expressly granted by law to other professionals, no person may perform any of the acts described in section 16, if there is no optometrist. " [15] [ ... ]dropoff window
[Emphasis added]
[15] The Order argues that " any act [...] which aims to [...] the sale and replacement of ophthalmic lenses. "has the effect, in combination with Article 25, to prohibit Coastal sell its products to residents of Quebec.
[16] The Order inter alia, that the definition of sale in civil law and findings of private international law in relation to the law of the contract are not decisive for the right professional. The character of public order of the LSO, combined with the broad wording of Article 16 would result in the Coastal activities would be covered by the ban.In support of this position, including the Order refers to the judgments Celgene Corp. v. Canada (Attorney General), [16] the Supreme Court of Canada and Order of Pharmacists of Quebec v. Meditrust Pharmacy Services inc. [17] of the Court of Appeal.
3.2 Coastal
[17] For its part, maintains that Coastal carries on business in accordance with the laws of the Province of British Columbia, both in terms of sales, replacement or renewal of ophthalmic lenses. Sales, described in the application of the Order, between Coastal and Quebec customers are were concluded in BC and governed by the law applicable in that province.
[18] According to her, the territorial scope can not extend the LSO in order to regulate Coastal activities due to lack of sufficient real and substantial connection between Quebec and one. She believes that the existence of comparable systems in Quebec and British Columbia, professional regulation of optometry and optics orders, can limit the territorial scope of the LSO.
3.3 Progex
[19] Progex argues that it is not part of the sales occurred. She reports that as part of an advertising service contract, it is only acting as a showcase for Coastal redirecting customers Coastal websites.
4. ISSUE
[20] The ophthalmic lens sales activities and Coastal Progex are they subject to the laws of Quebec professional and more particularly to the LSO and Dispensing Opticians Act [18] (the " Act Op.o " ) I need regular.
5. THE RIGHT
[21] The relevant statutory provisions for the consideration of the issue are found at the LSO, the Op.o Act and the Code.
· The LSO:
" 16. constitutes the practice of optometry any act other than the use of drugs whose purpose and vision that relates to eye examination, analysis of their function and evaluation of visual problems and orthoptics, prescription, fitting, adjustment, sale and replacement of ophthalmic lenses . "
" 25. Subject to the rights and privileges expressly granted by law to other professionals, no person shall do any of the acts described in section 16, if there is not an optometrist . "
[Emphasis added]
· The Op.o Act:
" 8. constitutes the practice of the profession of optician orders any act that is to ask, adjust, replace orsell an ophthalmic lens . "
" 15. Subject to the rights and privileges expressly granted by law to other professionals, no person may perform any of the acts described in section 8, if it is not opticians . "
[Emphasis added]
· The Code:
" 23. Each order has primary function of ensuring public protection.
To this end, it must in particular supervise the practice of the profession by its members. "
" . 26 exclusive right to practice a profession can not be granted to members of an order that the by law; such a right should be granted only in cases where the nature of the actions of these individuals and the latitude available to them because of the nature of their usual work environment is such that in order to protect the public, the acts can not be performed by persons lacking the training and qualifications required to be members of this order. "
" 32. No person shall in any way claim to be a lawyer, notary, doctor, dentist, pharmacist, optometrist , veterinarian, agronomist, architect, engineer, land surveyor, forest engineer, chemist, medical imaging technologist, radiological technologist oncology or medical electrophysiology technologist, denturist, dispensing optician, chiropractor, audiologist, podiatrist, nurse, acupuncturist, bailiff, midwife, geologist or chartered professional accountant or use any of these titles or title or abbreviation which may suggest that it is, or initials which could imply that he is, or gainful employment for members of a professional order , claim to have the right to do so or act in ways that lead to the belief that he is authorized to do so, if he holds a valid, appropriate permit and is not registered on the roll of the order empowered to issue this license, unless the law allows.
The prohibition on using titles or abbreviations or assume the initial mentioned in the first paragraph or in an Act constituting a professional order extends to the use of such titles, abbreviations or to the allocation of these initial the feminine gender. "
[Emphasis added]
6. ANALYSIS AND DECISION
[22] The heart of the dispute is whether Article 16 of the LSO prohibits the sale of ophthalmic lenses by a person located outside the province of Quebec residents.
[23] For the reasons given below, the Court is of the opinion that the LSO can not apply to sales made by Coastal in Quebec and that the action for declaratory judgment brought by the Order must be rejected.
[24] In order to explain this decision, the Tribunal will first address the professional and contract law applicable to the relationship between a professional and a client in Quebec law. Then he further analyze the impact of the presence of a seller from another province in the relationship. Then look at the constitutional issues related to the sharing of skills and extraterritorial laws. Finally, it will discuss the arguments submitted by Coastal regarding the applicability of the Agreement on Internal Trade Canada to the facts in dispute.
6.1 The law applicable to glasses or contact lenses sales contract the Quebec context
[25] It should be to qualify the obligations under the contract as they are numerous. Their qualification will determine the effect of private international law which will be discussed below.
[26] The typical relationship that a customer looking glasses has with the professional assistance is: customer first pass an exam with a qualified professional, and then chooses a style of glasses suits him - sometimes with the help of the professional stylist or her employment. He then control glasses that are custom made for her prescription and embedded in the frame selected to give a unique and personalized object.
[27] This process can also be divided between several professionals. For example it is common for the professional who is the exam is different from that which assembles and sells glasses.
[28] What is generally referred to as a "purchase" or "sale" of ophthalmic lenses is actually a contract with several characteristics of a service contract in addition to those relating to the sale of the lens properly speak.The question of whether it is a consumer contract is however more difficult.
[29] The case law and doctrine, however, argue that professionals should not be considered as traders [19]
[30] The qualification as a consumer contract has significant effects on the classification of the contractual relationship. The Tribunal is of the opinion that the contract of sale of glasses or contact lenses in Quebec does not qualify as such.
6.2 The internet sales contract
[31] The sale of internet products does not, in itself, the application of a different legal regime from that applicable to a sale in person.
[32] In this case, the contract of sale is concluded both remotely and interprovincial. It is therefore necessary to analyze the mechanical supply and acceptance and private international law to specify where the contract was concluded and the law applicable to it.
6.2.1 The distance selling contract
[33] The contract is the place where the offerer receives the acceptance of the offer by the other contracting party [20] . In this case, the Offeror is Coastal. The acceptance is received at its head office in British Columbia.
[34] Indeed, Coastal is considered to have made an offer on its website that the client responds by choosing a product, confirming the information on the prescription and sending payment.
[35] A more complex scenario in the same result: the Coastal site can be considered as an invitation to treat, which is accepted by the client when it sends information to the website to get a quote for an eyewear model and a specific type of glasses and according to his own prescription. Coastal then reconsider an offer including all information and pricing for glasses as ordered. The customer accepts and transmits its acceptance Coastal, and the contract is formed.
[36] It is otherwise if the contract is called a consumer contract. Indeed, in this case, the contract is deemed concluded at the consumer's address. [21]
[37] Coastal invokes the place of conclusion of the contract in British Columbia as an argument to postpone the application of Quebec law.
[38] The place of conclusion of the contract is not a connecting factor in private international law, so it has no effect on the law applicable to the contract.
[39] However, this argument may be relevant from the point of view of the territorial jurisdiction of the Quebec authorities constitutionally. It is therefore appropriate to determine the place of conclusion of the contract.
6.2.2 Private international law
[40] The Book X of the Civil Code establishes rules governing conflicts of law and jurisdiction to be applied by the Quebec courts when faced with a situation of a foreign element.
[41] The existence of a contract between actors from two provinces is a foreign element. It is therefore necessary to apply the rules of conflict of law concerning the obligations [22] to find the law of the contract.
[42] Article 3111 CCQ provides the rules applicable to all contracts:
" 3111. The legal act, whether or not a foreign element, is governed by the law expressly designated in the act or the designation is the result of a certain way of the provisions of this act.
However, if it has no foreign element, it remains subject to the mandatory provisions of the state law that would apply in the absence of designation.
One can explicitly select the law applicable to all or to only part of a legal act. "
[43] The specific provisions for sale are to the same effect. [23]
[44] The law designated in the contract of sale between Clearly Contacts inc. and its customers is now the law of British Columbia. Some documents on file, however, suggest the right of the Netherlands; so it is possible that the change in the law of British Columbia is recent. In both cases, the designated law is that which must be applied by the competent court to decide any dispute related to the contract.
6.3. The division of powers and the real and substantial connection
[45] Coastal relies in support of its defense that the LSO does not apply to him because it is outside the territorial jurisdiction of Quebec and it is subject to a comparable plan by the province of British Columbia.
[46] What?
[47] The provincial legislative jurisdiction is constitutionally limited to their territory [24] , only the federal Parliament is empowered to legislate with a staff or extraterritorial effects [25] .
[48] This limitation is due to the fact that, despite Canada's federation status, only the federal government will be held accountable by other nations if it adopts laws have undesirable effects on their territory. This responsibility of other nations is causing that of international comity, which is based in particular private international law [26] .
[49] The authors Brun, Tremblay and Brouillet indicate that determination of the validity of laws with extraterritorial application follows the same test as that applicable to the division of powers as a whole:
" In determining the constitutionality of provincial laws with extraterritorial application virtually, courts have reasoned in the same way as other questions about the division of powers. We must, as in the case of shared physical skills, search the true character of the law to see if this is extraterritorial reach the goal or only an incidental effect: Re Upper Churchill Water Reversion Act, [1984] 1 SCR 297. " [27]
[50] In the case of Canadian Western Bank v. Alberta , the Supreme Court emphasized that we must first identify the true character of the Act. [28]
[Citations omitted]
[51] In this case, the purpose of the LSO is to protect the public by ensuring that professionals who practice optometry are adequately trained and meet minimum standards of practice of the profession.
[52] For this, the LSO lists a series of actions that constitute the practice of optometry, and provided these documents to persons who are members of the Order and who hold a valid license to practice. Such acts are acts that fall under the "service" part of the contract between the optometrist and his client.
[53] The legislature also provided to the members of the Order acts " aimed [...] sale [of ophthalmic lenses]. "This reserve seems to have a less clear link with public protection service portion and seems rather aim to confer an economic monopoly to professionals.
[54] The Tribunal is of the opinion that these economic and public protection objectives are separate and severable.
[55] The true character of the LSO aims a head of valid provincial jurisdiction because the provinces can adopt regulatory laws professional bodies under their jurisdiction over property and civil rights in the province. The Tribunal is of the view that the LSO is both valid and applicable to all situations within the province.
6.4 comity of states
[56] A number of new factors come into play when dealing with the applicability of the LSO outside Quebec.
[57] Professor Côté summarizes the problem of territoriality in the following terms:
" 782. It is difficult to establish with certainty the spatial scope of legislation because of the problems aroused the location of people, goods, acts or facts that the law governing claims. On the one hand, physical location of a person or property, which concludes an act, which is not necessarily occurs coincides with the situs, location, assigned by the law. Furthermore, considerations related to the requirements of comity States affect the qualification of the territorial effect of a text.
783. A State may find inappropriate or contrary to the comity of states (a principle of public international law) governing persons or property, physically located within its borders, however, have with him as links superficial or accidental. Thus, the Quebec Civil Code, Article 3083, it provides that Quebec laws on the status and capacity of individuals not apply to persons who are in Québec, but domiciled elsewhere.
784. A State may, however, extend the impact of its laws to persons or property which, even if they are physically located abroad, or maintain a significant relationship with him. Thus, Article 3083 of the Civil Code of Quebec he enacts that Quebec law regarding the status and capacity following a natural person who is domiciled in Quebec when the latter travels abroad.
785. It follows that in the eyes of the law, a law has no extraterritorial effect simply because it claims to regulate a person, well, act or fact physically located abroad. This is the situs in the eyes of the law that must be considered . [...]
786. In summary, and simplifying, we can say that the law of a State has extraterritorial effect to govern when she hears of people, goods, actions or legal facts that do not have a "real and important "with that State.
787. When can we say that such a link exists? To answer this question, the courts will appeal mainly (but not exclusively) to connection methods developed by the private international law. The location of a person, of property, of an act or fact require legal qualification of the legal problem and the application of various connecting factors that indicate the legal system to govern the situation.
788. The result of this localization process will in turn be assessed in the light of the requirements of the comity of developed states in public international law. These include between Canadian provinces, these requirements can take a different form than it borrow in relations between fully sovereign states. " [29]
[Citations omitted, emphasis added]
[58] The Court finds that a law of this paper is to apply to any situation that presents a real and substantial connection to the province. However, even if there is a real and substantial connection between a subject and Quebec constitutional principles could order that the court refused to apply that law called
[59] This balance between the real and substantial connection and the constitution is at the heart of the judgment Morguard of the Supreme Court:
" As for me, I much prefer the more complete formulation of comity adopted by the Supreme Court of the United - States in Hilton v. Guyot, 159 US 113 (1895), pp. 163 and 164, in the following passage cited by Estey J. in Spencer v. The Queen, [1985] 2 SCR 278, at p. 283:
[TRANSLATION] The "courtesy" in the legal sense, is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good will of the other. But it is the recognition which one nation allows within its territory to the legislative, executive or judicial of another nation, due both to international duty and convenience, and the rights of its own citizens or of other persons are under the protection of its laws.
As Dickson J. stated in the judgment Zingre c. The Queen, [1981] 2 SCR 392, at p. 401, citing Justice Marshall CJ in The Schooner Exchange v. M'Faddon, 11 US (7 Cranch) 116 (1812), "common interest impels sovereigns to mutual intercourse" between sovereign states. In short, the rules of private international law are based on the need in modern times to facilitate the orderly and equitable flow of wealth, skills and people from one country to another. Von Mehren and Trautman noted in "Recognition of Foreign Auctions: A Survey and A Suggested Approach" (1968), 81Harv. L. Rev. 1601, at p. 1603 [TRANSLATION] "The ultimate justification for according some degree of recognition is that, in our highly complex and interrelated world if each community exhausted all possibilities to defend its parochial interests, he result of injustice and disruption of normal patterns of life " . [...]
In any event, the English rules seem to me contrary to the clear intent of the Constitution to create a single country. This presupposes a basic goal of stability and unity where many aspects of life are not confined to a single spring. Common citizenship provides Canadians mobility from one province to another, which is reinforced today by s. 6 of the Charter; See Black v. Law Society of Alberta, [1989] 1 SCR 591. Specifically, significant steps have been taken to promote economic integration. One of the key elements of the constitutional arrangements incorporated in the Constitution Act, 1867 was the creation of a common market. Section 121 dismissed barriers to interprovincial trade. Overall, interprovincial trade and commerce were considered a subject of concern to the country as a whole; see s. 91 (2) of the Constitution Act, 1867. " [30]
[Emphasis added]
[60] In this instance, the College proposes to apply the law of Quebec a mixed contract sales and professional services. However, professional services are rendered in the territory of British Columbia and Quebec law considers that the sale was completed it. The only connection maintained with Quebec is that the customer will received the finished product.
[61] Therefore, the situation does not present the real and substantial connection with Quebec that would give reason to the Order. Even if that were the case, the Tribunal is of the view that several arguments based on constitutional principles mentioned above oppose what Quebec law applies in this case.
[62] First, nothing in the LSO is no evidence of a clear legislative intent to give the LSO extent that the Order wants to give it. On the contrary, the Court is of the opinion that in the absence of marks of this intention, the only possible interpretation of the LSO is one that assumes it was enacted in accordance with the territorial limits to the legislatures of the National Assembly.
[63] In addition, the existence of a corporation in British Columbia charged with a mission similar to that of the Order provides that the public is protected by standards of practice and a remedy exists if malpractice. This professional has also taken legal action against Coastal in the past to enforce standards in effect [31] .
[64] Finally, the principles of economic integration and free movement of goods set out in Article 121 of theConstitution Act, 1867 and reaffirmed on numerous occasions by the Supreme Court [32] in favor of an interpretation the provision in question, which is limited to the territory of Quebec.
6.5 The Agreement on Internal Trade
[65] According Coastal, the existence of the Agreement on Internal Trade [33] includes the requirements of order and fairness to limit the territorial scope of the LSO.
[66] The website of the Internal Trade Secretariat present and the Agreement on Internal Trade:
" The Agreement on Internal Trade is a trading intergovernmental agreement signed by Canadian First Ministers and entered into force in 1995. Its purpose is to foster improved interprovincial trade by addressing obstacles to the free movement of persons, products, services and investments within Canada and to establish an open internal market, efficient and stable. "[34]
[67] The Agreement establishes a system based on the same principles as those that led to the signing of the Treaties of the General Agreement on Tariffs and Trade (GATT) and the World Trade Organization [35] . These principles are, in particular, equal treatment and local businesses from outside, the elimination of barriers to the free movement of goods and people, holding calls fair offers and investment facilitation .dropoff window
[68] This Agreement is in the nature of a treaty between nation-states, so it is not in itself the binding force of a law passed by Parliament or a province. The obligations contained therein more a matter of politics.
[69] To this end, the Agreement creates its own dispute settlement mechanism in Chapter seventeen. This chapter is divided into two parts, Part A dealing with the settlement of disputes between States and Part B dealing with the settlement of disputes between a person and a government.
[70] The Tribunal is of the view that the arguments raised by Coastal wishing that the provisions reserving the deeds of sale of ophthalmic lenses with a professional members constitute unjustified restrictions on trade should first be submitted to the dispute settlement body.
6.6 declaratory conclusions regarding management Progex
[71] In its original application, the Order requires that advertising by management Progex be declared an " act concerning the sale "of ophthalmic lenses within the meaning of the LSO.
[72] The Tribunal is of the opinion that this application should be dismissed. Even if the customer finds Coastal through advertising on the site Progex, final sale still occurs at the site of Coastal and conditions described therein.
[73] In this sense, advertising by Progex is not different from buying advertising in a newspaper or in transit. It appears to the Court that qualify just advertising as " deed for the sale "would give a far too wide to the LSO.
[74] In addition, members of the Order have ethical obligations relating to advertising they can do as part of their activities. As neither Progex Coastal nor are members of the Order, these obligations do not apply to them.Furthermore, the fact that obligations exist for members of the Order does not, in our view, the effect of these actions qualify as " acts intended sale "within the meaning of the LSO.
FOR THESE REASONS, THE COURT :
[75] DENIES the motion for declaratory judgment;
[76] ALL WITH FRESH.
__________________________________
Paul Mayer, JSCM e Marc Simard Bélanger Sauvé LLP Solicitors for the plaintiff M e Sylvain Poirier and M e Patrick A. Molinari Lavery, De Billy, LLP Solicitors for the defendants M e Stéphane Reynolds Monty Coulombe, GP Prosecutors questioned Dates of hearings: On 25 and 26 September 2014
addendum ..................................
[1] RLRQ, c. O-7.
[2] RLRQ, c. C-26.
[3] [RSBC 1996] Chapter 183.
[4] BC Reg. 200/2012.
[5] BC Reg. 118/2010.
[6] Exhibit P-9.
[7] Exhibit P-10.
[8] Exhibit P-11.
[9] Exhibit P-15.
[10] Exhibit P-16.
[11] Exhibit P-17.
[12] Exhibit P-19.
[13] Exhibit P-20.
[14] Exhibit P-21.
[15] Optometry Act , RLRQ c. O-7, s. 16-25.
[16] 2011 SCC 1.
[17] Order of Pharmacists of Quebec v. Meditrust Pharmacy Services Inc. , [1994] 2833 RJQ (CA).
[18] RSQ, c. O-6.
[19] See in particular: Express Finance RG inc. v. Farsi 2010 QCCS 2137 Pacific National Leasing Corp . v. Rose , [1997] RJQ 480 (SC), appeal dismissed, Drake Personnel v. Normandin , [1991] RJQ 1789 (CQ), see also: Claude Masse , the Consumer Protection Act: analysis and comment s, Cowansville Yvon Blais Press, 1999, p. 28 and 76.
[20] in 1387. The contract is formed when the offerer receives the acceptance and the place where acceptance is received, whatever the means of communication used, and even if the parties have agreed to reserve agree on some secondary elements.
[21] Consumer Protection Act - RLRQ c. P-40 - 54.1. A distance contract is a contract while the merchant and the consumer are not in the presence of each other and which is preceded by an offer from the merchant to enter into such a contract.
The trader is deemed to be an offer to conclude the contract if the proposal contains all the essential elements of the proposed contract, whether or not indication of its willingness to be bound in case of acceptance, even in the presence of an otherwise noted.
54.2. The distance contract is deemed concluded at the consumer.
[Emphasis added]
[22] Articles 3109 to 3131 CCQ
[23] 3114. In the absence of designation by the parties, the sale of tangible personal is governed by the law of the State where the seller had his residence or if the sale is concluded in the course of activities a business, place of business, at the time of concluding the contract. However, the sale is governed by state law where the buyer had his residence or place of business, at the time of conclusion of the contract in any of the following:
1. Negotiations have been conducted and the contract was concluded in that State;
2. The contract expressly provides that the delivery shall be performed in that State;
3. The contract is concluded under the terms determined mainly by the buyer, in response to a call for tenders.
In the absence of designation by the parties, the sale of a property is governed by the law of the State where it is located.
[Emphasis added]
[24] Constitution Act, 1867 , s. 92.
[25] Statute of Westminster , Art. 3.
[26] Peter Hogg, Constitutional Law in Canada , 5th ed., Toronto: Carswell, 2007, loose-leaf, a day in 2012, p. 13-2.
[27] Henri Brun, Guy TREMBLAY and Eugénie Brouillet, Constitutional Law , 6 th ed., Cowansville, Éditions Yvon Blais, 2014, p.602.
[28] 2007 SCC 22, para. 25-27: [25] It is now well established that the resolution of a case involving the constitutionality of legislation with regard to the division of powers must always begin with an analysis of the "pith and substance" of the impugned legislation .dropoff window The analysis can focus on the legislation as a whole or only to certain provisions of the latter.
This first analysis consists of an inquiry into the true nature of the law in question to identify the "matter" on which it focuses. [...] If the true character of the impugned legislation can be related to a matter within the jurisdiction of the legislature that enacted, the courts will declare it intra vires. However, when it is more accurate to say that it is on a matter which falls outside the jurisdiction of the legislature, the finding of this violation of the division of powers will result in the invalidation of the law.
[26] The true nature of the law should be determined in two ways: the intent of the legislature that enacted and legal effect of the law. In the analysis of the aim, courts may consider both intrinsic evidence, such as the preamble or the provisions of the legislation setting out its general objectives that the extrinsic evidence, such as random or minutes of parliamentary debates. In doing so, however, the courts must seek the real purpose of the legislation, rather than its simply stated or apparent purpose.Similarly, courts may consider the effects of the legislation. For example, in Attorney General for Alberta v stop. Attorney General for Canada, [1939] AC 117 ("Alberta Banks"), the Privy Council struck down a provincial law imposing a tax on banks on the grounds that the effects of the Banking Act were so important that its real object could not be (as claimed by the province) the raising of money by imposing a tax (which would have made a law intra vires), but it was the regulation of banking (which rendered ultra vires and thus invalidated).
[27] The fundamental corollary of this method of constitutional analysis is that legislation whose pith under the jurisdiction of the legislature that enacted it may, at least to some extent, affect matters which are not jurisdiction without necessarily being unconstitutional. At this stage of the analysis of its constitutionality, the "dominant purpose" of the legislation is still decisive. Its aims and side effects have no effect on its constitutional validity "merely incidental effects will not disturb the constitutionality of a law otherwise intra vires." By "accessories" means the effects of the law that may have a significant practical importance but which are incidental and secondary to the mandate of the legislature which enacted the law.
[Citations omitted}
[29] Pierre-André SIDE, in collaboration with Stéphane and Mathieu BEAULAC DEVINAT, Construction of Statutes , 4 th edition, Montreal, Editions Themis, 2009,. 782-788.
[30] Morguard Investments Ltd . v. De Savoye , [1990] 3 SCR 1077.
[31] College of Opticians of British Columbia v. Coastal Contacts Inc. and Clearly Contacts Ltd. , 2009 BCCA 459.
[32] See especially for this purpose: Burns Foods Ltd. et al. v. Attorney General of Manitoba et al. , [1975] 1 SCR 494, Hunt v. T & N PLC ., [1993] 4 SCR 289, Unifund Assurance Co. v. Insurance Corp. of British Columbia , 2003 SCC 40.
[33] See the Act respecting the implementation of the Agreement on Internal Trade , c. M-35.1.1.
[34] Internal Trade Secretariat, Introduction , online: http://www.ait-aci.ca/index_fr.htm .
[35] This is the conclusion of the Supreme Court in Northrop Grumman Overseas Services Corp . v. Canada (Attorney General) , 2009 SCC 50.
copied and translated from:
http://citoyens.soquij.qc.ca/php/dec...C3A77B3&page=1
Last edited by Chris Ryser; 12-09-2014 at 03:03 PM.
It was never time for our regulatory bodies to challenge them in court.Originally Posted by ex-optician
It was about time that one of the regulatory bodies challenged them in court. Unfortunately the decision did not go in our favour. What can we do next? There is a two tier dispensing system where one is regulated and the other is not. Perhaps the Great Glasses business model and Bruce Bergez are visionary.
To win they are out of their league and element.
Based on the size of their market share and conglomerate of ownership, nobody will ever be in their league to successfully challenge this.
Essilor beat Quebec optometrists. Clear and decisive.
In a broader sense a person who wishes to obtain professional services in 1 province can purchase this from any jurisdiction in the world so long as in that other jurisdiction the service is lawfully rendered. At a high level I agree with this. At the same time though, if local professionals are handcuffed with stiff regulations and can't compete on a level playing field this could drive more people to seek these online services. The local governing bodies may be faced with a real catch 22. While their mandate is to protect the public, they can do nothing about the public seeking "foreign" professional service/advice and in a sense are encouraging people to do so. Weird.
Regulatory bodies are a rag tag collection of elected people based on popularity in so so election processes. They are generally not elected on professional talent that they can bring to focus on regulatory issues. Its doubtful to me that many or as a group that they understand the wording of their own Acts. How many would have even read the transcripts of the past court cases word for word ?
These bodies have had as many years as CC has been in business to clean up the wording of their ACTS. Did they do it ?
What is the commonality of all online vendors? What is the essence of their existence ? Why is anyone individually going head to head against a well focused political machine ? Of course they are going to lose. They hit exactly what they aimed at.
Kind of like people going to India for cosmetic surgery at 25% of the price in the states although in both of these cases people will be seen by licensed practitioners.
Regards,
Golfnorth
You can only restrain trade in your own backyard!
Really ?
"Essilor beat Quebec optometrists. Clear and decisive."
I don't think so. They are a well run company. ECPs aren't . ECP's beat themselves.
So we all look for our own pocket ...........................
However we are all the same. I had to renew my Florida drivers license a few years back and they wanted my eyes tested and went to one of the big ophthalmology clinics in Naples and the doctor wanted to do the cataract in my left eye at the cost of $ 4,000.00.
I said no I will have it done back in Quebec. He gave me the Rx in a sealed envelope as demanded by the state. However when opened he also had added a note, that I should pass another driving test, which I had to and passed in flying colors. So he paid me back for not spending the money with him.
In Quebec it only cost me $ 200.00 for the implant.
So we all look for our own pockets, lets be honest and you can not blame the consumer for doing so. At least start selling services which the people will need.
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