James McLean, an Ontario optician practising in Hamilton, brought a Court application seeking a declaration that his proposed model for obtaining prescriptions, and dispensing eyewear, is lawful.1
The Proposed Model
Mr. McLean, through a company which he controls, leased an automated refraction device known as the "Eyelogic System". The Eyelogic System, by conducting sight tests and measuring the refractive error of the eye, can automatically generate "prescriptions". Mr. McLean's intention was to use the Eyelogic System to generate "prescriptions", which would then be sent to an ophthalmologist in Alberta who would review them and issue an actual prescription. The actual prescription would then be sent back to Mr. McLean, and he would use same to dispense eyeglasses to the patient.
What, then, is the difference between a "prescription" and an actual prescription?2 Section 5(1) of the Opticianry Act, 1991, (the "Act")3 prohibits an optician from dispensing eyewear to a patient "except upon the prescription of an optometrist or physician"4. Failure to comply with this provision is an act of professional misconduct.5 Thus, the "prescription" generated by the Eyelogic System does not satisfy this criteria, and is not a valid prescription in the sense that an Ontario optician could not then use same to dispense eyewear. This is where the Alberta ophthalmologist comes in to play. According to Mr. McLean, having the Alberta ophthalmologist review the "prescription" and send back an actual prescription would be in keeping with section 5(1) of the Act.
In this case, the onus was on Mr. McLean to establish the legality of the proposed model. However, the Court held that Mr. McLean failed to meet this onus. In particular, the Court held that Mr. McLean failed to establish that an Ontario optician is permitted to dispense eyewear based on a prescription written by an optometrist or physician who had not personally examined the patient (and had relied solely on the "prescription" generated by the Eyelogic System).
Nonetheless, the Court spent a significant amount of time discussing the involvement of opticians in refractive testing, and acknowledged the considerable debate on this issue which has taken place over the last few years. In this regard, the Court made the following conclusion:
On the evidence before me, it is clear that there is unfinished business relating to the appropriate model for regulation of refractive testing by Ontario health care professionals. The Health Professions Regulatory Advisory Council has recommended that the Colleges governing opticians, optometrists and physician[sic] develop collaborative standards of practice relating to refractive testing. They have not done so. The Minister of Health and Long-Term Care has suggested that the Advisory Council develop its advice regarding refracting by eye care professionals in Ontario. That process appears to be stalled. It ultimately falls on the Minister as part of the Ontario government to resolve the issues raised by this policy debate in a timely manner, consistent with the attendant public health concerns. In my view, it is not appropriate for the court to become involved in this process in the absence of compelling grounds for doing so. I do not consider such grounds to exist in this case.6
The Court also discussed the fact that Mr. McLean was asking it to validate a hypothetical model, as the proposed model was not actually in use at the time the application was heard. The Court held that it should not entertain the granting of a declaration in such hypothetical circumstances, even if it is of the view that the Applicant's legal position otherwise justifies doing so.
The Take Away Messages
The Court issued two general messages in this case. Its message to the government: There is an acknowledged issue with the current refracting system, and you, the government, need to be the ones to fix it. Its message to Applicants: barring exceptional circumstances, the Court will not render advisory positions or assist an Applicant if it is not actually in any legal jeopardy.
While Mr. McLean did not receive the declaration which he sought, the profession of opticianry as a whole may have benefited from the Court's analysis of the current refracting framework. Whether the government will heed the Court's advice remains to be seen.
* Lindsay Kantor is an associate at Torkin Manes LLP, practicing in all areas of civil litigation, with an expertise in representing regulated health professionals in regulatory disputes.
1 2217758 Ontario Inc. v. Ontario (Attorney General),  O.J. No. 5 (Sup. Ct.) (QL) per Lococo J [2217758 Ontario]
2 These terms were created by the author for the purpose of this article, and are not found in the Court's decision.
3 S.O. 1991, c. 34
4 The Act, at s. 5(1).
5 Ibid. at s. 5(2).
6 2217758 Ontario, supra at para 33.
Originally published in Ontario Opticians Association Newsletter and Risk Management in Canadian Health Care Newsletter
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