Wadden v. College of Opticians of Ontario

Wadden v. College of Opticians of Ontario Collection Decisions of the Court of Appeal Date 2001-12-10 Docket numbers C36106 Judges McMurtry, Roy; Rosenberg, Marc; Simmons, Janet M. Subject Civil Decision Content DATE: 20011210 DOCKET:C36106 COURT OF APPEAL FOR ONTARIO McMURTRY C.J.O., ROSENBERG AND SIMMONS JJ.A. BETWEEN: ) ) SANDRA WADDEN AND KING OPTICAL GROUP INC. (carrying on business as Braddock Optical) ) ) ) Joshua Liswood for the appellant ) Applicants (Appellants) ) ) - and - ) ) ) COLLEGE OF OPTICIANS OF ONTARIO ) ) ) David C. Rosenbaum and Karyn Wasserstein for the respondent Respondent ) ) ) ) Heard: November 20, 2001 On appeal from an Order of Justice Norman D. Dyson dated January 18, 2001. SIMMONS J.A.: [1] Sandra Wadden and King Optical Group Inc. (“Braddock Optical”) appeal from an order of a Superior Court judge dated January 18, 2001, upholding convictions entered and sentences imposed by an Ontario Court judge on November 15, 1999 and December 13, 1999 respectively, on charges laid under ss. 27(1), 27(2), 40(1), and 42(1) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, as amended (RHPA), and s. 77(1) of the Provincial Offences Act, R.S.O. 1990, c. P. 33 (POA). [2] Ms. Wadden was convicted of performing the controlled act of dispensing eye glasses for vision or eye problems in the course of providing health care services to an individual without being a member authorized by a health professions act, to perform the controlled act. Braddock Optical was convicted on the basis of being Ms. Wadden’s employer. [3] The issues on appeal are whether the retail sale of prescription eye glasses falls within the scope of “providing health care services to an individual”, and what constitutes the proper definition of “dispensing” prescription eye glasses under the RHPA. A specific issue arises concerning whether “risk of harm” plays any role in the definition of these concepts. Background [4] While working at Braddock Optical on February 6, 13 and 19, 1997, Ms. Wadden served and sold a pair of prescription bifocal eye glasses to a Mr. Barker. Ms. Wadden was the only employee working during the times in question. Mr. Barker is a private investigator hired by the College of Opticians of Ontario (the “College”). [5] Ms. Wadden was a registered optician for eye glasses in Nova Scotia. Following a move to Ontario, she chose not to pursue the four-year program required for her to register here. [6] In making a finding of guilt against Ms. Wadden, the trial judge noted that the RHPA does not define “dispensing”. After hearing expert evidence he found that dispensing means “the preparation, adaptation and delivery of eye glasses, … to a person.” [7] The trial judge listed the activities performed by Ms. Wadden as part of serving Mr. Barker and selling eye glasses to him. These activities included: greeting the customer, showing him frames, commenting on their appearance, discussing bifocals, determining whether the customer wanted bifocals with lines, discussing lens materials and coatings, taking facial measurements, including the distance between his cornea and the centre of his nose, asking the customer to read with the glasses, and adjusting the arm piece and fit. He found that “each of the acts of Ms. Wadden constituted dispensing” and that they “fit within the definition” that he had stated. [8] Of note, the trial judge stated that he did “not accept the submission that dispensing is not part of prescribing” and that there was “sufficient evidence to establish beyond a reasonable doubt a risk of harm in the dispensing of eye glasses to adults”. [9] The judge hearing the original appeal under the POA made the following findings: The findings of the trial judge were reasonable and supported by the evidence. Further, I find no fault with his application of the law. He found that an unauthorized person was performing controlled acts, namely “dispensing”, contrary to s. 27(2)(a). He accepted that such activity constituted a risk of harm to the public, pursuant to evidence presented. He did not apply the standard of care set out in s. 30 to the prohibitions set out in s. 27. He was correct to ignore s. 30 because, despite the lack of clarity in the section with respect to its application, s. 30 is a so called “basket” clause which applies to situations not contemplated or specified in s. 27. A review of the information from committee hearings and Hansard prior to the enactment of the legislation leads one to the conclusion that the Legislators considered that a risk of harm was implicit in the prohibited acts specified in s. 27 with which I agree. The penalties were well within the reasonable discretion of the Trial Judge. Relevant Statutory Provisions [10] Section 1(1) of the RHPA defines “health profession” as a “health profession set out in Schedule 1.” Schedule 1 of the RHPA lists “opticianry” as a self-regulating health profession. [11] Section 3 of the Opticianry Act, 1991, S.O. 1991, c. 34 sets out the scope of practice of opticianry as follows: 3. The practice of opticianry is the provision, fitting and adjustment of subnormal vision devices, contact lenses or eye glasses. [12] The relevant portions of ss. 27(1) and (2) of the RHPA are as follows: 27. (1) No person shall perform a controlled act set out in subsection (2) in the course of providing health care services to an individual unless, (a) the person is a member authorized by a health profession Act to perform the controlled act; or (b) the performance of the controlled act has been delegated to the person by a member described in clause (a). (2) A “controlled act” is any one of the following done with respect to an individual: … 9. Prescribing or dispensing, for vision or eye problems, subnormal vision devices, contact lenses or eye glasses other than simple magnifiers. [13] Section 30 of the RHPA provides that: 30. (1) No person, other than a member treating or advising within the scope of practice of his or her profession, shall treat or advise a person with respect to his or her health in circumstances in which it is reasonably foreseeable that serious physical harm may result from the treatment or advice or from an omission from them. Grounds of Appeal [14] The appellants raise the following issues as grounds of appeal: i. did the Provincial Appeals Court judge and the trial judge err by failing to determine whether dispensing eye glasses to an adult is a health care service; ii. did the Provincial Appeals Court judge and the trial judge err in failing to define the controlled act of dispensing in terms of risk of harm, and in particular, serious risk of physical harm; iii. did the Provincial Appeals Court judge and the trial judge err in finding that the dispensing of eye glasses to a person of visual maturity presents a risk of harm; iv. did the Provincial Appeals Court judge and the trial judge err in finding that dispensing is part of prescribing; and v. did the Provincial Appeals Court judge and the trial judge err in failing to define the controlled act of dispensing within the spirit and intent of the RHPA? Did the Provincial Appeals Court Judge and the Trial Judge Err by Failing to Determine Whether Dispensing of Eye glasses to an Adult is a Health Care Service? [15] The term “health care services” is not defined in the RHPA. The appellants point out that many appropriately trained, but unlicensed individuals perform consultative, measuring, fitting, and clerical duties in optometrist’s and ophthalmologist’s offices but are not liable to conviction because their acts are delegated by a regulated profession that permits delegation. They also point out that over-the-counter reading glasses are sold in drug, hardware, book, and department stores across Canada. Consumers simply choose a pair of glasses that suits their needs without assistance from a health care professional. [16] Consumers have the ability to choose how much to spend when purchasing eye glasses based on a variety of choices including the style of frames, lens type, lens coatings, and ultimately, where and from whom to buy the product. The appellants submit that the sale of eye glasses to visually mature individuals is a retail function that does not meet a common sense definition of the provision of “health care services”. [17] In the alternative, the appellants say that the only aspect of “dispensing” prescription eye glasses to adults that constitutes a health care service is the final verification by an optician that the product delivered corresponds with the prescription that was given. The appellants say that there was no evidence presented to demonstrate that Ms. Wadden undertook the “verification aspect” of dispensing. [18] Although neither the trial judge nor the Provincial Appeals court judge specifically alluded to the issue of whether dispensing prescription eye glasses to an adult constitutes “providing a health care service to an individual”, I am not persuaded that either judge erred in failing to do so. [19] The origins of the RHPA lie in the Health Professions Legislative Review, Striking a New Balance: A Blueprint for the Regulation of Ontario’s Health Professions (Toronto: The Review, 1989), generally referred to as the Schwartz Report. The Executive Summary to that report includes the following comments: The Review’s mandate was to make recommendations to the Minister in the form of draft legislation, with respect to: -which health professions should be regulated; -updating and reforming the Health Disciplines Act; [and] -devising a new structure for all legislation governing the health professions … Through professional regulation the nature and quality of health care services can be regulated. Professional regulation is aimed at advancing the public interest, not the interests of the professions. The Review’s recommendations are aimed at advancing the public interest in four ways: -Protecting the public, to the extent possible, from unqualified, incompetent and unfit health care providers. -Developing mechanisms to encourage the provision of high quality care. -Permitting the public to exercise freedom of choice of health care provider within a range of safe options. -Promoting evolution in the roles played by individual professions and flexibility in how individual professionals can be utilized, so that health services are delivered with maximum efficiency. [emphasis added] … The Review recommends that a uniform or omnibus Health Professions Procedural Code be enacted and that the Code be coupled with an individual Professional Act for every profession … to be regulated. [20] As noted by Laskin J.A. in M.F. v. Sutherland [1] at page 309, “[t]he relevance and use of government reports in interpreting legislative provisions has been much debated”, however, I adopt his conclusion that “where legislation is closely tied to the recommendations of a government report…then the report should be considered in interpreting the statute [i]t is relevant, though not determinative.” [21] As noted in the executive summary of the Schwartz Report the very purpose of the RHPA is to regulate the provision of health care services. “Opticianry” is designated as a self-governing health care profession by virtue of Schedule 1 to the RHPA. The services Ms. Wadden provided to Mr. Barker are clearly within the scope of practice of opticianry, namely the provision, fitting and adjustment of eye glasses. By definition Ms. Wadden was providing health care services to Mr. Barker when she sold him a pair of prescription eye glasses. Did the Provincial Appeals Court Judge and the Trial Judge Err in Defining Dispensing? [22] The appellants submit that the trial judge erred by failing to define the controlled act of dispensing eye glasses in terms of risk of harm; by finding that dispensing is part of prescribing; by finding that dispensing eye glasses to a person of visual maturity presents a risk of harm; and by failing to define the controlled act of dispensing within the spirit and intent of the RHPA. [23] The appellants’ first and fourth submissions rest on the premise that the purpose and intent of the RHPA is to move away from a restrictive predecessor regulatory scheme, which they say created professional monopolies by prohibiting unlicensed persons from performing activities that fell within the “scope of practice” of a particular profession. The appellants submit that the purpose and intent of the RHPA is to restrict unlicensed persons from performing only those health care activities that are associated with risk of harm. Unlicensed persons are no longer restricted from activities based on a profession’s scope of practice under the RHPA. Rather, they are prohibited only from performing the “controlled acts” listed in s. 27(2), and are subject to the “basket clause” prohibition set out in s. 30. [24] The appellants accordingly submit that before determining whether a particular activity falls within the purview of a controlled act, the court should assess the risk of harm associated with that activity. Moreover, the standard of risk that should inform the definition, interpretation, and threshold of the controlled acts listed in s. 27(2) is that set out in s. 30. [25] I reject this submission. I agree that one purpose of the RHPA is to limit the health care activities that unlicensed persons are prohibited from performing to those specific activities associated with a risk of harm. In my view, however, a primary purpose of the RHPA is to protect the public from risk. Section 27(2) does not delegate identification of the level of risk to be protected to the court. Rather, the Legislature signalled its intent as to the level of risk to be protected by listing the prohibited activities that constitute controlled acts. [26] Again, I adopt the views of Laskin J.A., as set out in M.F. v. Sutherland, supra, at pages 306-7, concerning the appropriate approach to interpretation of the legislation: A basic principle of statutory interpretation is that the court should adopt the ordinary meaning of a legislative provision absent a good reason to reject it. The ordinary meaning is presumed to be the intended or most appropriate meaning unless the context, or the purpose and scheme of the legislation, or the consequences of adopting the ordinary meaning suggest otherwise. Professor Ruth Sullivan, who edited the third edition of Driedger on the Construction of Statutes, sets out the presumption in favour of the ordinary meaning: [2] 1) It is presumed that the ordinary meaning of a legislative text is the intended or most appropriate meaning. In the absence of a reason to reject it, the ordinary meaning prevails. 2) Even where the ordinary meaning of a legislative text appears to be clear, the courts must consider the purpose and scheme of the legislation, and the consequences of adopting this meaning. They must take into account all relevant indicators of legislative meaning. 3) In light of these additional considerations, the court may adopt an interpretation in which the ordinary meaning is modified or rejected. That interpretation, however, must be plausible; that is, it must be one the words are reasonably capable of bearing. [27] I see nothing in the language of the RHPA that indicates that, in interpreting the meaning of a particular controlled act, courts are to engage in a risk analysis. Rather, the plain meaning of the words, and any meaning that may be commonly understood in the respective professions, defines the scope of a controlled act and determines the level of risk to be protected. [28] Here the trial judge heard expert evidence as to the meaning of dispensing. He defined the term in a manner consistent with that evidence, dictionary definitions and the definition of dispensing as it appeared in predecessor legislation. [29] For example, the defence expert optician agreed that dispensing an optical prescription for eye glasses would include: “selection, designing, measuring, manufacturing, verification, fitting/delivery”. [3] [30] Dictionary definitions of dispensing include: The Concise Oxford Dictionary of Current English (1998), dispense…make up and give out (medicine etc.) according to a doctor’s prescription. The Dictionary of Canadian Law, 2d ed., Ophthalmic Dispensing. (i) Supplying, preparing and dispensing ophthalmic appliances; (ii) interpreting prescriptions of legally qualified medical practitioners and optometrists; and (iii) the fitting, adjusting and adapting of ophthalmic appliances to the human face and eyes in accordance with the prescriptions of legally qualified medical practitioners and optometrists. [31] “Ophthalmic dispensing” was formerly defined in s. 1 of the Ophthalmic Dispensers Act, R.S.O. 1990, c. O.43 as the: (a) supplying, preparing, and dispensing ophthalmic appliances; (b) interpreting prescriptions of legally qualified medical practitioners and optometrists, and (c) the fitting, adjusting and adapting of ophthalmic appliances to the human face and eyes in accordance with the prescriptions of legally qualified medical practitioners and optometrists… [32] I see no error in the definition of dispensing adopted by the trial judge. However, I add that I do not view the words chosen by him as exclusive or all encompassing. Further, I wish to clarify that I do not equate the term “preparation” with “fabrication”. Rather, I view its meaning as “all actions necessary to be performed prior to adaptation and delivery”. [33] As I reject the appellants submission that “risk of harm” should be assessed before determining whether particular activities fall within the purview of a controlled act or should inform the definition of dispensing, it is unnecessary to deal with whether the trial and Provincial Appeals court judges erred in finding that dispensing eye glasses to a person of visual maturity presents a risk of harm. [34] I agree that the trial judge overstated his conclusion when he said of the activities performed by Ms. Wadden: “[e]ach act was an act of dispensing”. I observe, however, that dispensing may be a single act or part of a continuum of activities. Carried out in isolation, activities such as commenting on the appearance of frames, and receiving payment would not in and of themselves constitute dispensing. Nevertheless, I find no error in the trial judge’s overall finding of guilt. [35] The trial judge made an obvious error when he said, “I do not accept the submission that dispensing is not part of prescribing.” Each of the terms “dispensing” and “prescribing” clearly forms a distinct part of the activity prohibited by s. 27(2) 9. I am not however persuaded that this error impacts in any way on the validity of the trial judge’s other conclusions. [36] I would accordingly dismiss the appeals against conviction. Sentence Appeal [37] The appellants failed to raise any error in law in relation to the sentences imposed. I would accordingly dismiss the appeals against sentence. Signed: “Janet M. Simmons J.A.” “I agree R. Roy McMurtry J.A.” “I agree Marc Rosenberg J.A.” Released: “RRM” DECEMBER 10, 2001 [1] (2000), 188 D.L.R. (4th) 296 (Ont. C.A.), leave to appeal to the Supreme Court of Canada refused April 15, 2001 [2] Ruth Sullivan, ed., Driedger on the Construction of Statutes, 3d ed. (Markham, Ont.: Butterworths, 1994) at p. 7 [3] Book of Transcripts, Volume II, McCormack, p. 65.