On appeal, the College of Opticians of British Columbia (the “College”) succeeded in obtaining an injunction prohibiting two contact lens companies (“Coastal/Clearly”) from selling contact lenses to members of the public without securing written prescriptions in advance. Coastal/Clearly were given six months to become compliant with the applicable regulation before the injunction would take effect.

24. November 2009 0

Administrative law – Decisions of administrative tribunals – College of Opticians – Opticians – Public interest – Supervision – Judicial review – Compliance with legislation – Standard of review – Correctness – Remedies – Injunctions – Self-governing professions – Statutory provisions

College of Opticians of British Columbia v. Coastal Contacts Inc., [2009] B.C.J. No. 2099, British Columbia Court of Appeal, October 26, 2009, L.S.G. Finch C.J.B.C., P.D. Lowry and K.E. Neilson JJ.A.

Opticians are “eye care professionals specializing in the preparation, fitting and dispensing of ophthalmic appliances, including contact lenses”. The College regulates opticians in British Columbia.  Opticians are governed by the Health Professions Act, R.S.B.C. 1996, c. 183 (the “Act”), and the regulations thereunder, including the Opticians Regulation, B.C. Reg. 487/94 (the “Regulation”).

The Regulation, at s.5(3), requires that “no person other than a contact lens fitter may fill a prescription by fitting and dispensing contact lenses”. Section 5(4)(c) provides an exception to this requirement where the prescription is merely being refilled by a person, who is supervised by a contact lens fitter or prescriber.

Coastal/Clearly were engaged in Internet sales of contact lenses to members of the British Columbia public. Prospective purchasers entering the Coastal/Clearly website were required to certify that they had a valid prescription for the contact lenses being ordered. In addition, the site contained a Disclaimers and Limitation of Liability section directing that customers seek help from their eye care professionals for issues of medical advice, diagnosis, treatment or care.

After certifying that they hold a valid prescription and reviewing the waiver language, prospective customers were directed to fill in an online form of their eye measurements. The prospective customers were to obtain these measurements from their prescriptions. Coastal/Clearly would not obtain the actual prescriptions from the customers. An order for contact lenses would then be filled, and Coastal/Clearly had a licensed optician employed to supervise the process by checking the lens information against that provided by each customer prior to shipping.

The construction of the Regulation is a question of law reviewable on a standard of correctness. The Regulation, at ss.5(3) and 5(4)(c), should be interpreted in accordance with the modern approach to statutory interpretation laid out in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42. The Regulation’s object is to protect the public through (1) ensuring that only qualified persons undertake certain activities, so that the health and safety of the public is ensured and (2) to define the scope of practice of opticians to protect the public from overly broad monopolies that could drive consumer costs for non-specialized interventions too high.

The Court of Appeal found that the Chambers judge erred in law by not considering the definition of the word “prescription” in the Regulation, and its effect on the interpretation of s.5(4)(c). “Prescription” is defined as a written record of the technical requirements for optical lenses, prepared by a prescriber (who must be an optometrist or qualified medical practitioner). Therefore, a person dispensing contact lenses under ss. 5(3) and 5(4)(c) is filling or refilling a written record of technical specifications prepared by either a medical practitioner or an optometrist. The Court of Appeal held that the fact that a prescription must be a written record implies that the dispenser must see that written record. Coastal/Clearly’s system did not refer to the actual written prescription, and so did not meet these requirements.

The customer’s certification of holding a valid prescription did not constitute sufficient compliance with the requirement for a prescription under the Regulation. The website did not tell customers that the “valid prescription” must be a written record of specifications from the prescriber, but suggested that if they did not have a copy of the prescription, customers could seek the information required from their current contact lens box, which was clearly not a prescription as defined in the Regulation. The online form did not require the customer to differentiate between an initial order and a refill, meaning Clearly/Coastal could not avail themselves of the exception in s.5(4)(c).

The Court of Appeal overturned the finding of the Chambers judge that Coastal/Clearly had not contravened the Regulation because there was no evidence that they fitted the contact lenses they sold. Coastal/Clearly did not require a prescription from customers prior to dispensing contact lenses, and requirement for a prescription to be reviewed by the person dispensing lenses is a requirement of the Regulation.

Where an injunction is authorized by statute, the petitioner must demonstrate a clear breach of the law. The College met that onus and established that Clearly/Coastal breached s.5(4)(c) by refilling prescriptions without seeing the prescriptions.

Once a regulatory breach is demonstrated, the College need not show actual damage for the injunction to be imposed. Harm to the public is presumed from the breach of a regulatory statute.

Coastal/Clearly were subject to an injunction against refilling a prescription by dispensing contact lenses unless they were in receipt of a prescription, but the injunction was suspended until May 1, 2010 to give them an opportunity to revise their business model, so that it would satisfy the Regulation and/or to seek legislative change to accommodate their business model.

P.D. Lowry J.A. dissented, and would have dismissed the College’s appeal on the basis that s.5(4)(c) does not require those dispensing contact lenses under supervision to see a written prescription before refilling it. His Lordship declined to read into the wording of the Regulation a requirement that the actual record constituting the prescription needs to be reviewed by the supplier.

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