Canada: Great Glasses Saga Ends With Jail Sentence For Civil Contempt

Last Updated: November 28 2011
Article by Roy Stephenson and Brian P.F. Moher

The Great Glasses decisions represent some of the harshest statements from the courts on civil and criminal contempt. With fines totalling $17 million, a jail sentence of one year for civil contempt, and further jail sentences pending for the contemnors, Bruce and Joanne Bergez, the decisions constitute very significant jurisprudence in the law of contempt.

Bruce Bergez was the manager and controlling mind of the Great Glasses business, a Hamilton- based chain of optical stores. Great Glasses' major selling attraction was its offer of a seven-day-a-week free eye test. The "eye test" was performed by a computerized refractometry machine, which measured the refractive error in a person's eyes. The computer results were then used by Great Glasses in place of a legal prescription, to fabricate and dispense the customers' eyewear. The fatal flaw with this business model is that by generating its own "prescriptions," and then dispensing on the basis of the computer data, Great Glasses was performing each of these acts illegally, in contravention of the health care legislation in Ontario.

On July 23, 2003, Justice Harris, upon application by the College of Optometrists, ordered that Great Glasses run its business in compliance with Ontario's health care legislation. The Bergezes failed to do so. Their business prospered. In the following three years, Great Glasses grew from three stores to 17.

Persistence paid off for the college, however. Following a further application before Justice Crane in October 2006, the court stated in November 2006 that the Bergezes' business structure "is a sham," and, even if the arrangement was real, it "is so far removed from the requirements of the [Regulated Health Professions Act] to be virtually nonsense and a highly superficial, glib and arrogant response to this Application of contempt of court."

Justice Crane further found that the Bergezes' conduct constituted a "gross deception on the public, putting his customers at risk of their health, done solely for...commercial profit." He described the Bergezes' operations as "predatory practice on the health of the public and on the legitimate and economic interests of professional competitors." Justice Crane ordered that the illegal profits of Great Glasses be disgorged by way of a fine of $1,000,000, with an additional $50,000 for every day that the Bergezes were not in compliance.

The Bergezes appealed, but the Court of Appeal was not sympathetic, and upheld Justice Crane's decision and orders in full. Justice Watt, writing for the Court of Appeal, succinctly stated, "We cannot suffer the sacrifice of the rule of law to the lure of lucre." (see College of Optometrists of Ontario v. SHS Optical Ltd. (c.o.b. Great Glasses), [2008] O.J. No. 3933.) The Bergezes sought leave to appeal to the Supreme Court of Canada, but were refused.

Subsequent to Justice Crane's judgment, the Bergezes were brought before Justice Fedak to account for their continued noncompliance. The college's case was presented to Justice Fedak in August 2007. The evidence demonstrated uncontrovertedly that the Bergezes continued to act in open defiance of the courts' judgments, by continuing to advertise free eye tests, administer these "eye tests," and then dispense eyewear without a legal prescription from an optometrist or a physician. The total additional fine owed by the Bergezes as a result of Justice Fedak's judgment was $16,000,000.

The Bergezes appealed to the Court of Appeal, and on Jan. 13, 2009, the unanimous panel dismissed all of the Bergezes' grounds of appeal, noting that "the brazen nature of the appellants' contempt, its lengthy and ongoing nature, and the risk to the public health and safety posed by the appellants' conduct demanded a substantial fine that would act as a strong disincentive to the continuation of this kind of conduct." The Bergezes sought leave to appeal to the Supreme Court of Canada, but were refused again. Despite this, and the preceding record-setting fines, the Bergezes continued to ignore the orders of the courts, and operate their business as usual.

In June of 2010, the college appeared before Justice Turnbull, together with intervenors the College of Opticians and the Attorney General, seeking prison sentences for both of the Bergezes. Justice Turnbull determined on July 2, 2010 that the Bergezes were both guilty of civil and criminal contempt for their continued non-compliance. Bruce Bergez was subsequently sentenced to one year in prison for the civil contempt, and will appear once again before Justice Turnbull at the conclusion of his prison sentence for sentencing for the criminal contempt. After he completes his sentences, Joanne Bergez will be sentenced.

Beyond setting a Canadian record for contempt fines, the Great Glasses saga signifies the willingness of the courts to ensure that even private businesses comply with the Regulated Health Professions Act and the courts will impose jail sentences if these businesses ignore court orders.

Roy Stephenson is a senior partner with Lerners LLP in Toronto, and was senior counsel for the College of Optometrists. His practice areas include the defence and prosecution of administrative law matters. Brian Moher is an associate with Lerners LLP and was junior counsel for the College of Optometrists. He practises in the areas of health law, administrative law and class actions.

www.lerners.ca

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