COURT OF APPEAL FOR ONTARIO

CITATION:
College of
    Optometrists of Ontario v. Essilor Group Inc.,

2019 ONCA 265

DATE: 20190404

DOCKET: C64845

Juriansz, Brown and Huscroft
    JJ.A.

BETWEEN

College of Optometrists of
    Ontario and College of Opticians of Ontario

Applicants (Respondents in Appeal)

and

Essilor Group Canada Inc.

Respondent (Appellant)

Jonathan Lisus, Hilary Book and Philip
    Underwood, for the appellant

Linda Rothstein, Jean-Claude Killey, and Daniel
    Rosenbluth, for the respondents

Heard: September 21, 2018

On appeal from the order of Justice
    Thomas R. Lederer of the Superior Court of Justice, dated January 11, 2018,
    with reasons reported at 2018 ONSC 206.

Brown J.A.:

I.

OVERVIEW

[1]

The explosion in the volume and variety of
    online consumer transactions over the past decade has included the emergence of
    an online market for the purchase and sale of prescription eye glasses and
    contact lenses (prescription eyewear). In some jurisdictions, friction has
    emerged between the online vendors of such products and the professional health
    care bodies that historically have regulated the sale of eye glasses and
    contact lenses. This case involves one instance of that friction.

[2]

The appellant, Essilor Group Canada Inc.
    (Essilor), a federally incorporated company, is a subsidiary of Essilor
    International Compagnie Générale dOptique S.A., one of the largest
    manufacturers of ophthalmic lenses in the world. Essilor operates at both the
    wholesale and retail levels. As a wholesaler, Essilor supplies lenses to
    Ontario optometrists and opticians. Since 2014, Essilor has carried on business
    as an online retailer of contact lenses and eye glasses, a result of its
    acquisition of Clearly Contacts Ltd. and Coastal Contacts Inc. Those two
    companies now operate as divisions of Essilor.

[3]

Essilors head office is located in Quebec.
    However, the online business of Essilors Clearly and Coastal divisions is
    conducted in British Columbia through their websites clearly.ca and coastal.com
    (the Websites).

[4]

The respondents, the College of Optometrists of
    Ontario and the College of Opticians of Ontario, are self-governing
    professional regulatory bodies pursuant to the
Regulated Health Professions
    Act
,
1991
, S.O. 1991, c. 18 (
RHPA
). The regulatory
    scheme in which they operate will be described in detail later in these
    reasons. Briefly, under their respective statutes  the
Optometry Act, 1991
,
    S.O. 1991, c. 35 and the
Opticianry Act, 1991
, S.O. 1991, c. 34  the
    Colleges regulate the practices of optometry and opticianry. The scope of each
    regulated practice includes the dispensing of subnormal vision devices, contact
    lenses, and eye glasses.

[5]

Prior to its acquisition in April 2014 by
    Essilor, Clearly had sold contact lenses online to Ontario customers since 2000
    and eye glasses since 2008.

[6]

On September 3, 2014, the Registrars of both
    Colleges wrote a joint letter to Essilor alleging that the company was engaged
    in unlawful behaviour by dispensing prescription eyewear through the Internet
    to Ontario consumers without involving an Ontario-licensed health care
    provider.

[7]

Discussions then ensued amongst Essilor, the
    Colleges, and the Ontario associations of optometrists and opticians. No
    agreement was reached.

[8]

On December 13, 2016, the Colleges commenced
    this application against Essilor. The Colleges allege that Essilor is in breach
    of the
RHPA
s. 27 by accepting orders for prescription eyewear through
    the Websites and shipping the eyewear to patients in Ontario. In the application,
    the Colleges seek: (i) a declaration that the company had breached s. 27 of the
RHPA
by dispensing, for vision or eye problems, subnormal vision
    devices, contact lenses and/or eye glasses, in Ontario; and (ii) an injunction
    prohibiting Essilor from engaging in such dispensing except where the
    dispensing is performed by a Member [of the Colleges] or a Members delegate.

[9]

By order dated January 11, 2018, the application
    judge granted the requested declaration and injunction. He made two key
    findings.

[10]

First, he held that [i]n substance Coastal and
    Clearly are dispensing eyewear to those who require corrective lenses to assist
    with less than perfect vision: at para. 73.

[11]

Second, the application judge considered the
    constitutional principles set out in
Unifund Assurance Co. v. Insurance
    Corp. of British Columbia
, 2003 SCC 40, [2003] 2 S.C.R. 63, regarding the
    applicability of provincial legislation to an out-of-province defendant, such
    as Essilor. He concluded, at para. 90, that a sufficient connection exists
    between Ontario and Essilors conduct to fall within the prohibition contained
    in s. 27 of the
RHPA
:

In this case prescription eyewear is ordered
    by people in Ontario. It is delivered to them in Ontario. Presumably it is to
    be used by them while resident in Ontario. This represents a sufficient
    connection to Ontario.

[12]

Essilor appeals. For the reasons set out below,
    I would allow the appeal. I conclude that the application judge incorrectly
    held that ss. 27(1) and (2) of the
RHPA
are constitutionally applicable
    to Essilors online sales of prescription eyewear to customers in Ontario. The
    mere delivery in Ontario of an order for prescription eyewear that has been
    processed in compliance with the British Columbia regulatory regime, without
    more, does not establish a sufficient connection between Essilors online sales
    and the controlled acts proscribed by the
RHPA
s. 27(1).

II.

THE BUSINESS OF ESSILOR

[13]

The Canadian market for prescription eyewear is
    large. Estimates in 2016 pegged contact lens sales at $324 million and the sale
    of spectacles  frames, lenses, sunglasses and ready-made reading glasses  at
    $4.2 billion. In 2014, it was estimated that 4% of retail spectacle and contact
    lens sales occur online in Canada. According to Essilors evidence, other vendors
    sell eyewear online in Ontario: eleven sell contact lenses online; four sell
    eye glasses.

[14]

Essilor describes online sales as only a small
    fraction of the retail market for corrective lenses, but a growing one;
    opticians and optometrists operating out of traditional physical offices and
    stores still dominate the market for corrective lenses in Canada.

[15]

Essilor, through Clearly, operates a few
    bricks-and-mortar stores: two in Vancouver and one in Toronto. An optician and
    a contract optometrist work at the Toronto store; both are members of their
    respective Colleges.

[16]

Clearlys online retail business is based in
    British Columbia and operates in accordance with British Columbia laws and
    regulations. Located in British Columbia are: Clearlys head office and
    management team, its lab, distribution centre, and warehouse.

[17]

Clearly accepts and fills online orders in the
    following fashion:

(i)
A customer makes an online
    purchase of eye glasses or contact lenses from Clearly through the Websites,
    which are hosted by a service in Texas. Once a customer places an order, all
    order information, apart from credit card information and customer data is
    stored on servers at Clearlys Vancouver office;

(ii)
To order eye glasses or contact
    lenses online through Clearlys Websites, customers must enter their
    prescription information and, in the case of eye glasses, their pupillary
    distance. Clearly does not conduct eye exams or issue prescriptions. Although
    customers are not required to provide copies of their prescriptions when ordering
    online, they must accept Clearlys Terms and Conditions of Use, which require
    customers to certify that they have valid prescriptions for the lenses they are
    ordering;

(iii)
Sometimes optometrists do not
    include pupillary distance as part of a prescription. Clearly does not measure
    customers pupillary distances, but its Websites contain information about how
    customers can measure the distance themselves;

(iv)
Clearlys Vancouver office issues
    an electronic invoice to the customer; online payments are processed through a
    third party in Montreal;

(v)
When an online order is received
    and accepted in British Columbia, it is sent by Clearlys Vancouver
    administrative office to its Vancouver lab and distribution centre for
    processing. In the case of eye glasses, Clearly orders the components for
    frames and lenses from outside Canada. The eye glasses are assembled either in
    Clearlys Vancouver lab or at an Essilor partner lab outside of Canada. In the
    case of contact lenses, Clearly sources them from manufacturers in the United
    States and maintains an inventory of lenses at its Vancouver warehouse. About
    80% of contact lens customers are supplied from product in inventory;

(vi)
Clearly ships finished eye glasses
    and contact lenses to customers from its British Columbia distribution centre;

(vii)
Clearly operates a call centre in
    Vancouver to address customer questions. An optician who is a member of the
    British Columbia College of Opticians is on staff;

(viii)
The Vancouver office processes all
    returns.

[18]

Where a customer in Ontario buys prescription
    eyewear online from Clearly, only two steps in the transaction touch upon
    Ontario: (i) the customer enters the order online from a device in Ontario; and
    (ii) Clearly arranges for the delivery of the eyewear to the customer at a
    location in Ontario.

III.

THE REGULATORY SCHEME IN BRITISH COLUMBIA

[19]

As the description of Essilors mode of online
    business discloses, British Columbia is the companys principal place of
    business. As well, the terms and conditions posted on Clearlys Websites state
    that services provided through the sites are governed by the laws of British
    Columbia and applicable federal laws.

[20]

There is no dispute that Essilors method for
    selling prescription eyewear is authorized by the law of British Columbia.

The situation prior to 2010

[21]

That was not always the case. In 2008, the
    College of Opticians of British Columbia sought a court order to prohibit
    Clearly from selling or dispensing contact lenses online to individuals in
    British Columbia. Clearly successfully resisted the application in the court of
    first instance:
College of Opticians of British Columbia v. Coastal
    Contacts Inc.
, 2008 BCSC 617. However, in 2009 the British Columbia Court
    of Appeal reversed. It held that merely requesting an online customer to
    certify that he or she had a prescription did not comply with the regulations
    then in force, which required Clearly to obtain a written prescription from a
    customer:
College of Opticians of British Columbia v. Coastal Contacts Inc.
,
    2009 BCCA 459, 98 B.C.L.R. (4th) 53, at para. 21.

The 2010 regulatory changes

[22]

About half a year later, on May 14, 2010, the
    British Columbia government amended the
Opticians Regulation
under the
Health
    Professions Act
, R.S.B.C. 1996, c. 183. That act, like its Ontario
    counterpart, authorizes regulations requiring that prescribed services may only
    be provided by registrants of a designated health profession college: s.
    12(2)(e).

[23]

The British Columbia
Optometrists Regulation
, B.C.
Reg. 33/2009

and
Opticians Regulation
,
B.C. Reg. 118/2010, define the
    practices of optometry and opticianry as including dispensing vision
    appliances. Both contain the same definition of dispense with respect to
    vision appliances: "dispense" means to design, prepare, fit,
    adjust, verify or supply: s. 1 of
Optometrists Regulation
and
Opticians Regulation
. Both
    regulations limit the practice of optometry and opticianry to registrants of
    the Colleges, with an important exception.

[24]

That exception was enacted by a May 2010
    amendment to the
Opticians Regulation
, which introduced two major
    changes to the British Columbia regulatory regime governing the dispensing of
    corrective lenses.

[25]

First, the amendments permit persons who are not
    registered optometrists and opticians to dispense corrective eye glass lenses
    and contact lenses as long as two main conditions are met:

(i)

the person possesses either: (a) a copy of an
    authorizing document in the case of a corrective eyeglass lens, or a contact
    lens record
[1]
in the
    case of a contact lens, in respect of the customer; or (b) the information in an
    authorizing document or contact lens record accompanied by a statement from
    the customer certifying the existence of the relevant authorizing document or
    contact lens record and the accuracy of the information; and

(ii)

in the case of dispensing using an assessment
    record, the change in correction between the lenses ordered by a person and his
    or her prior prescribed lenses does not fall within certain ranges or the
    nature of the requested lenses does not indicate the presence of certain
    medical conditions, as set out in ss. 6 and 8 of the Schedule to the
Opticians
    Regulation
.

[26]

Second, the person dispensing the prescription
    can rely on a prescription written by an optometrist or qualified medical
    practitioner outside of British Columbia. The relevant portions of the
Opticians
    Regulation
are reproduced in Appendix A to these reasons.

IV.

THE ONTARIO REGULATORY SCHEME

[27]

The regulatory scheme in Ontario for
    prescription eyewear exhibits a similar structure to that in British Columbia.
    Two statutes define the scope of the practices of optometry and opticianry: The
Optometry Act
and the
Opticianry Act
.

[28]

The
Optometry Act
defines the practice
    of optometry as the assessment of the eye and vision system and the diagnosis,
    treatment and prevention of (a) disorders of refraction; (b) sensory and
    oculomotor disorders and dysfunctions of the eye and vision system; and (c)
    prescribed diseases: s. 3. In the course of engaging in the practice of
    optometry, a member of the College is authorized to prescribe or dispense for
    vision or eye problems, subnormal vision devices, contact lenses or eye
    glasses: s. 4.

[29]

The
Opticianry Act
defines the scope of
    the practice of opticianry as the provision, fitting and adjustment of
    subnormal vision devices, contact lenses or eye glasses: s. 3. A member of
    that College may dispense subnormal vision devices, contact lenses or eye
    glasses, but only upon the prescription of an optometrist or physician: ss.
    4 and 5(1).

[30]

Under the
RHPA
, the concept of a
    controlled act operates to restrict the performance of specific health care
    acts to members of recognized professional health care bodies or their
    delegates. The proscription against persons who are not members of the Colleges
    from performing a controlled act is found in s. 27(1) of the
RHPA
,
    which states:

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)

t
he 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).

[31]

Section 27(2) of the
RHPA
lists the
    controlled acts. It states, in part:

(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.

[32]

In contrast to the British Columbia legislative
    scheme, the key Ontario statutes  the
RHPA, Optometry Act
and
Opticianry
    Act
 and their regulations do not define the term dispensing.

V.

THE COLLEGES ALLEGATIONS OF REGULATORY
    VIOLATIONS BY ESSILOR

[33]

While the Colleges agree that Essilors online
    sale of prescription eyewear is authorized by the British Columbia regulatory
    regime, they take the position that its online sale of such eyewear to
    customers in Ontario violates the Ontario regulatory scheme. The Colleges first
    took that position following Essilors 2014 acquisition of Clearlys online
    retail eyewear business.

[34]

By letter dated September 3, 2014, the
    Registrars of both Colleges wrote to Essilor stating that it was violating
    Ontarios laws by providing prescription eyewear to Ontario residents without
    the direct involvement of an optician, optometrist or physician in the
    dispensing process. The Colleges took the position that the controlled act of
    dispensing included the preparation, adaptation and delivery of prescription
    eyewear. In the Colleges view, [r]egardless of the business model used and
    the technology employed, authorized professionals must be directly involved
    with all aspects of dispensing eyewear. The Colleges asked Essilor to confirm
    that it would comply with Ontarios laws.

[35]

The letter enclosed a copy of the College of
    Optometrists policy on Spectacle Therapy Using the Internet (the Internet
    Therapy Standard), which can be found at Appendix B to these reasons. The
    Registrar of the College of Opticians deposed that the document was sent to
    Essilor to assist it in revising its practices to conform with Ontario law and
    standards.

[36]

Essilor responded to the letter, disagreeing
    with the legal positions advanced by the Colleges, but proposing a meeting to
    discuss the issue. A meeting was held in April 2015 without the parties
    reaching a resolution. As well, Essilor held talks with the Ontario
    associations of optometrists and opticians.

[37]

According to Essilor, two points of contention
    emerged in those discussions. First, the associations wanted Clearly to require
    consumers to provide copies of their prescriptions with the prescribing
    clinician identified, not just the information contained in the prescription.
    Second, the associations wanted Clearly to deliver orders to an optometrists
    or opticians office or retail store, not directly to the consumers homes. An
    impasse was reached on the issue of mandatory prescription verification, at
    which point the discussions ended in early 2016.

[38]

In 2015, the Canadian Association of
    Optometrists expressed concern to Clearly about its role in managed care plans,
    stating that [o]ptometrists object to this activity as it cuts them out of the
    retail activity with the patient and effectively competes directly with them.

[39]

In early 2016, the Colleges retained a law firm
    to conduct an investigation into Essilors business to obtain evidence of
    prohibited conduct.

[40]

This application ensued. In it, the Colleges
    allege that Essilor is in breach of the
RHPA
s. 27 by accepting, through
    its Clearly and Coastal online stores, orders for prescription eyewear and
    shipping that product to patients in Ontario.

[41]

The Colleges have not filed any evidence of
    specific harm to a member of the public caused by Essilors conduct. The
    Colleges rely on the presumption that if a person performs a controlled act in
    contravention of
RHPA
s. 27, harm to the public is presumed:
Wadden
    v. College of Opticians of Ontario
, (2001) 207 D.L.R. (4th) 72, (Ont.
    C.A.), at para. 32.

VI.

THE GOVERNING LEGAL TEST: SUFFICIENT CONNECTION

[42]

This case raises the constitutional issue of
    whether the connection between Ontario and Essilor is sufficient to support the
    application of Ontarios regulatory scheme for prescription eyewear to an
    out-of-province entity, such as Essilor. While initial formulations of the
    principle of territorial legislative restriction focused on physical presence
    in a territory, as the Supreme Court of Canada observed in
Unifund
, at
    para. 63:

Later formulations of the
    extraterritoriality rule put the focus less on the idea of actual physical
    presence and more on the relationships among the enacting territory, the
    subject matter of the law, and the person sought to be subjected to its
    regulation. The potential application of provincial law to relationships with
    out-of-province defendants became more nuanced.

[43]

In
Unifund
, the Supreme Court recognized
    that this more flexible view of extraterritorial application likely would
    increase the potential amongst the provinces for conflict. Nevertheless, the
    collective interests of the federation as a whole required the adoption of
    principles of order and fairness that ensure the security of transactions with
    justice: at paras. 68 and 74. In a federal system, that includes avoiding
    competing exercises of regulatory regimes, the cost of which undermines
    economic efficiency: at para. 71. Those considerations led the court to
    formulate the following principles at para. 56:

Consideration of constitutional
applicability
can conveniently be organized around the following propositions:

1.  The territorial limits on the scope of
    provincial legislative authority prevent the application of the law of a
    province to matters not sufficiently connected to it;

2.  What constitutes a sufficient
    connection depends on the relationship among the enacting jurisdiction, the
    subject matter of the legislation and the individual or entity sought to be
    regulated by it;

3.  The applicability of an otherwise
    competent provincial legislation to out-of-province defendants is conditioned
    by the requirements of order and fairness that underlie our federal arrangements;

4.  The
    principles of order and fairness, being purposive, are applied flexibly
    according to the subject matter of the legislation.

[44]

The required strength of the relationship varies
    with the type of jurisdiction asserted. A relationship that is inadequate to
    support the application of regulatory legislation nevertheless may provide a
    sufficient real and substantial connection to permit the courts of the forum
    to take jurisdiction over a dispute:
Unifund
, at para. 80.

[45]

There is no single standard defining what
    constitutes a sufficient connection; whether a sufficient connection exists
    depends largely on context:
Ontario College of Pharmacists v. 1724665
    Ontario Inc. (Global Pharmacy Canada)
, 2013 ONCA 381, 308 O.A.C. 200, at
    paras. 67 and 68 (
Global Pharmacy
).

[46]

The territorial limits on the scope of the
    provincial legislative authority relate to the conduct that the provincial
    regulator can regulate, in this case the controlled acts under the
RHPA
:
Global Pharmacy
, at para. 73.

[47]

The interpretation of a statutes language must
    be guided by the general rule of statutory interpretation that the words of an
    Act are to be read in their entire context, and in their grammatical and
    ordinary sense, harmoniously with the scheme of the Act, the object of the Act,
    and the intention of Parliament:
Bell ExpressVu Ltd. Partnership v. Rex
,
    2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.

[48]

Some statutes may use words that have
    established commercial law meanings. Although those meanings may apply in some
    statutory contexts, the interpretative process must be guided by the purpose of
    the statute:
Celgene Corp. v. Canada (A.G.)
, 2011 SCC 1, [2011] 1
    S.C.R. 3, at paras. 24 and 25. While clear statutory words will dominate,
    unclear words must yield to an interpretation that best meets the overriding
    purpose of the statute:
Celgene
, at para. 21;
Global Pharmacy
,
    at para. 60.

[49]

As well, the both here and there nature of
    online, Internet-based transactions poses additional challenges for the
    interpretative exercise:
Society of Composers, Authors and Music Publishers
    of Canada v. Canadian Assn. of Internet Providers
, 2004 SCC 45, [2004] 2
    S.C.R. 427, at para. 59. Traditional contract law principles may assist in
    determining whether certain conduct falls within the jurisdiction of a
    regulator; in other circumstances they may not, necessitating resort to a
    consideration of other factors, particularly the substance and not the form of
    the conduct:
Global Pharmacy
, at paras. 46, 61-62 and 71.

VII.

FRAMING THE ISSUE ON APPEAL

[50]

There are two main issues on this appeal.

[51]

First, Essilor submits that the application
    judge erred in finding that it performs the controlled act of dispensing in
    Ontario within the meaning of ss. 27(1) and (2)9 of the
RHPA
. Essilor
    argues that its sale of prescription eyewear into Ontario by delivering ordered
    product to an Ontario customer does not amount to the controlled act of
    dispensing.

[52]

Second, Essilor submits that the application
    judge incorrectly decided the constitutional issue by concluding that a
    sufficient connection exists between its online provision of prescription
    eyewear and Ontario so as to bring its activities within the ambit of s. 27 of
    the
RHPA
.

[53]

These two issues are intertwined. I shall
    consider them in the following order. First, I will review the case law and
    evidence about regulatory standards concerning the content of the controlled
    act of dispensing prescription eyewear. Second, I will examine Essilors
    contention that the application judge erred in finding that it performed a
    controlled act in Ontario. I will then move to the constitutional issue of
    sufficient connection and the application judges treatment of the
Unifund
test.

VIII.

CONTROLLED ACT: THE CASE LAW AND EVIDENCE OF REGULATORY STANDARDS

[54]

Because the sufficient connection test directs
    an inquiry into the relationship among the enacting jurisdiction, the subject
    matter of the legislation, and the individual or entity sought to be regulated
    by it, consideration must be given to the meaning and application of the
    concept of controlled act contained in the
RHPA
s. 27. The controlled
    act at issue in this case is the
dispensing
,
    for vision or eye problems, subnormal vision devices, contact lenses or eye
    glasses other than simple magnifiers:
RHPA
, s. 27(2)9. [emphasis
    added]

The case law

[55]

Almost two decades ago, this court, in
Wadden
,
    interpreted the term dispensing in the
Opticianry Act
as meaning the
    preparation (but not fabrication), adaptation, and delivery of eye glasses: at
    paras. 6 and 41. In that case, the trial judge had held that each of the
    following acts constituted dispensing: 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: at para. 7.

[56]

This court found that the trial judge had
    overstated his conclusion holding, instead, 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: at para. 43.

[57]

Wadden
remains
    the leading case on what the dispensing of prescription eyewear means. But,
Wadden
was decided in 2001, before the emergence of a robust market in online
    commerce. The decisions language indicates that the movement from in-person to
    online purchases of prescription eyewear was not foreseen at that time.

[58]

However, both Colleges have issued Standards of
    Practice in which they describe the continuum of activities involved in
    dispensing prescription eyewear, including providing prescription eyewear by
    means of online transactions. While the Standards are not determinative of the
    meaning of the statutory term dispensing, they do afford insight into how
    both professions view adapting the traditional in-person provision of
    prescription eyewear to the new mode of online commerce.

Optometrists Standards of Practice

[59]

The
Optometric Practice Reference Standards
    of Practice
published by the College of Optometrists address in some
    detail the process of dispensing prescription eyewear online. Standard 6.4,
    concerning Spectacle Therapy, contains the Colleges Internet Therapy
    Standard, reproduced as Appendix B to these reasons.

[60]

The Internet Therapy Standard defines dispensing
    as the preparation, adaptation and delivery of vision correction. It
    identifies eight steps or stages in the process of providing prescription
    eyewear online. The standard provides that an optometrist should: (i) review
    with the patient factors affecting spectacle wear; (ii) review the details of
    the prescription; (iii) advise the patient regarding appropriate ophthalmic
    materials; (iv) take appropriate measurements; (v) arrange for the fabrication
    of the spectacles; (vi) verify the accuracy of the completed spectacles; (vii)
    fit or adjust the spectacles to the patient; and (viii) counsel the patient
    regarding spectacle wear.

[61]

Of the eight steps described, two concern
    dealings with the manufacturer of the eyewear. The other six involve
    communications with the patient. Of those six, the Internet Therapy Standard
    states that five can be performed without requiring the personal attendance of
    the patient. For those stages of the process, the optometrist may use various
    forms of electronic or online communication. For example, an optometrist may
    take appropriate measurements in-person or by in-office or remote computer
    applications. The specifics of other online means of communication can be found
    in the Internet Therapy Standard at Appendix B to these reasons.

[62]

The only step for which the Internet Therapy
    Standard requires a personal attendance by the patient is the penultimate one:
    the fitting or adjusting the spectacles to the patient. The standard offers
    the following rationale for this requirement:

In-person fitting and adjusting of spectacles
    provides a final verification and mitigates risk of harm by confirming that
    patients leave the clinic with spectacles that have been properly verified, fit
    and adjusted. In-person delivery of spectacles establishes a
    patient/practitioner relationship in circumstances where patients are new to
    the clinic and spectacle therapy was initiated through the optometrists
    website.

Opticians Standards of Practice

[63]

The
Professional Standards of Practice for
    Opticians in the Province of Ontario
contain a definition of dispensing
    similar to that used by the Optometrists Standard. The Opticians Standards
    contain separate sections for the dispensing of eye glasses and contact lenses.
    While expressed in somewhat different terms than in the Optometrists Standards,
    the continuum of activities is functionally similar.

[64]

The Opticians Standards do not contain
    guidelines for the online dispensing of prescription eyewear similar to those
    used by the optometrists. The College of Opticians
Practice Guidelines
only briefly address the use of technology. Nonetheless, they share common
    ground with the Optometrists Standards in that the final step on the continuum
    of activities  the delivery of the prescription eyewear  must be done in
    person. And therein lies the point of conflict between the parties in this
    proceeding.

Comparing
    Essilors acts with the steps described in the Internet Therapy Standard

[65]

Essilor does not perform all the steps described
    in the Internet Therapy Standards in order to fill an online order for
    prescription eyewear.

[66]

First, Essilor does not take measurements.
    Instead, it relies on the information contained in the prescription and
    provided by the customer. It should be noted that the British Columbia
    regulatory regime sets a higher health care standard for the content of
    prescriptions for eye glasses than does Ontario. In British Columbia, an
    optometrist must include in a prescription the persons interpupillary
    distance:
Optometrists Regulation
, s. 6(4)(e). No similar standard
    applies to prescriptions written by Ontario optometrists.

[67]

Second, Essilor does not fit or adjust eye
    glasses ordered online; it delivers the finished eye glasses to the location
    specified by the customer. By contrast, the Standards for Ontario optometrists
    and opticians require them to deliver the eyewear by means of an in-person
    fitting or adjustment.

IX.

CONTROLLED ACT: ANALYSIS OF THE APPLICATION
    JUDGES FINDINGS

[68]

No factual dispute exists about what Essilor
    does when it makes online sales of prescription eyewear or where Essilor
    performs the various steps it undertakes to fill an online order. As the
    application judge recognized, [v]irtually every action taken by Coastal and
    Clearly in connection with the preparation and delivery of eyeglasses occurs in
    British Columbia: para. 68.

[69]

That being the case, on what basis did the
    application judge find that Essilors online sales amounted to performing in
    Ontario the controlled act of dispensing in the course of providing health
    care services to an individual, as required to grant a restraining order under
    the
RHPA
s. 27(1)?

[70]

The application judge explained the basis for
    his finding at two places in his reasons. First, at paras. 65 and 66 he stated,
    in part:

Obviously, the respondent is making
    eyeglasses. It is filling prescriptions and delivering eyewear. This is enough
    to show that the respondent is dispensing eyewear. If it is necessary to go
    further, it is reasonable to infer, as I do, that the respondent dispensed
    the eyeglasses delivered to the three [investigatory] customers.

Accordingly, I find that the respondent has
    acted contrary to the requirements of s. 27 of the
Regulated Health
    Professions Act
.

[71]

Yet, the evidence clearly shows that Essilor
    makes eye glasses  in the sense of assembling or preparing them for shipment
    at its British Columbia facilities. As well, Essilor fills the prescriptions at
    and ships the finished eyewear from its British Columbia facilities. None of
    that activity constitutes the performance of a controlled act in Ontario.

[72]

However, the application judge returned to the
    issue of the violation of the
RHPA
s. 27(1) later in his reasons where,
    at para. 90, he stated:

In this case prescription eyewear is ordered by people in Ontario.
    It is delivered to them in Ontario. Presumably it is to be used by them while
    resident in Ontario.
This represents a
    sufficient connection to Ontario. To find otherwise would mean the eyeglasses
    are provided without obligation to adhere to Ontario regulation.
Ordering
    eyeglasses is the catalyst for, and delivery is part of, dispensing the
    eyewear; indicating that it is at least part of a controlled act as defined
    in s. 27(2) of the
Regulated Health Professions Act
.
[emphasis added]

[73]

In the application judges view, the online
    ordering of prescription eyewear from a device located in Ontario and its
    delivery to a person in Ontario amount to the performance by Essilor of
    controlled acts contrary to s. 27(1) of the
RHPA
: at para. 66. I shall
    examine each finding in turn.

A.

Placing an order

[74]

There is no dispute that in most cases a
    customer in Ontario uses a device located in Ontario to access Essilors Websites
    and place an online order. However, the customers inputting of information
    into the Websites and transmission of that order information to Essilor is not
    part of a controlled act within the meaning of the
RHPA
ss. 27 for
    the simple reason that the act is performed by the customer, not by the person
     Essilor  who provides the health care service to the individual. I accept
    Essilors submission that the proscription contained in the
RHPA
s.
    27(1) is directed at the supplier of a health care service or product, not at
    the consumer patient. Section 27(1) of the
RHPA
and the
RHPA

Code
do not vest the Colleges with the authority to seek to restrain acts taken by
    the consumer of health care services: see also
Ordre des optométrists du
    Québec c. Coastal Contacts Inc.
, 2016 QCCA 837, leave to appeal to S.C.C.
    refused, 2017 CanLII 442 (SCC), at para. 25. Accordingly, the fact that a
    customer places an order from an Ontario-located device cannot support a
    finding that Essilor performs the controlled act of dispensing in Ontario.

B.

Selling is not dispensing

[75]

Before considering the next act relied upon by
    the application judge  delivery  at this point it would be appropriate to
    consider a related submission forcefully advanced by Essilor, both below and on
    appeal: by selling prescription eyewear to individuals in Ontario, Essilor is
    not engaged in the act of dispensing. Considering the submission at this
    stage will shed some light on the nature of prescription eyewear transactions
    which, in turn, will assist in assessing whether delivery falls on the continuum
    of activities making up dispensing within the meaning of the
RHPA
s.
    27.

The decision of the application judge

[76]

At para. 54 of his reasons, the application
    judge distinguished dispensing from selling:

Dispensing is
    qualitatively different from selling, the term that was central to the
    rationale in
Ordres des optometristes du Quebec v. Coastal Contacts Inc
.
    Selling is commerce. Dispensing, however, refers to acts that respond to
    problem eye sight (prescribing, preparing, fitting, adjusting,
    adapting): that is, health care.

[77]

Nonetheless, in the result the application judge
    appeared to favour the Colleges argument that the act of selling was
    subsumed within dispensing, although he did not definitively decide that
    issue.

[78]

Essilor stresses that selling is not
    dispensing within the meaning of the
RHPA
s. 27(2)9. It bases its
    argument on the maxim of statutory interpretation that the express mention of
    one thing means the implied exclusion of another: specifically, that because s.
    27(2)8 of the
RHPA
refers to both dispensing and selling in
    describing the controlled act for drugs, while s. 27(2)9 only speaks of
    dispensing in the case of prescription eyewear, it must follow that the term
    dispensing when used in respect of eyewear does not include the selling of
    eyewear.

[79]

The application judge rejected that argument,
    noting that there was a need for the inclusion of the additional term selling
    in respect of the drugs covered by 27(2)8 because some drugs do not require a
    prescription yet still are subject to professional supervision when sold. But,
    that is not the case for prescription eyewear: at para. 63. The application
    judge appropriately explained how the implied exclusion maxim was rebutted in
    those circumstances:
Schnarr v. Blue Mountain Resorts Limited
, 2018
    ONCA 313, 140 O.R. (3d) 82, at para. 57, leave to appeal to S.C.C. refused,
    2019 CanLII 7956 (SCC).

[80]

Essilors submission misses the mark for a more
    fundamental reason. Optometrists and opticians do not provide prescription
    eyewear for free. A patient must pay a price for the eyewear before walking out
    of the office with the product. As a matter of common experience, the
    dispensing of prescription eyewear involves the commercial sale of a product,
    albeit a health care product. Indeed, the core dispute in this case revolves
    around the comparative prices at which Essilor and members of the Colleges
    provide prescription eyewear to the public.

[81]

While that disposes of Essilors selling is not
    dispensing argument, its submission does highlight that the provision of
    prescription eyewear is a transaction with both health care and commercial
    aspects. This has been recognized by prescription eyewear professionals
    themselves, as well as by the Quebec courts in litigation brought against
    Essilors Coastal division in that province by the Quebec professional
    regulator.

[82]

The 2014 discussion paper prepared by an expert
    panel struck by the Canadian Association of Optometrists
Pathways to the
    Future
 recognized the commercial dimension of providing prescription
    eyewear, and the attendant market pressures that dimension exerts on the
    traditional channels of selling eyewear through regulated health care
    professionals. At p. 12, the paper states:

In reality, many of the services provided
    today are loss leaders that support the retail business. Thus, the product
    aspect of the business  which historically has helped shape the profession
    should be retained as part of the business model, even in the light of ongoing
    competition from big box retailers and mass merchandisers offering discounted
    eyewear and a limited eye exam.

The opportunity in retail for [optometrists]
    is to differentiate by offering the aging population a more sophisticated array
    of tools and supports (for example, eSight). In addition, [optometrists] will
    retain their current patient-centred approach, offering a range of retail
    products to suit the priorities and interests of their patient base and target
    audience, with varying price ranges and strategic marketing messages. However,
    the expected increased competition in prescription eyewear and contact lens
    sales highlights the need for [optometrists] to adopt more proficient business
    practices.

[83]

The Quebec Court of Appeal also recognized the
    commercial dimension in their decision in
Ordre des optométrists du Québec
.
    In that case, the Ordre des optométrists du Québec (the Quebec College)
    sought a declaration that Coastal was violating the Quebec
Optometry Act
, C.Q.L.R. c. 0-7

(
Loi sur
    loptométrie
(
LSO
)) by engaging in the sale of ophthalmic
    lenses in Quebec through its website without being registered with the College,
    contrary to the provisions of the
LSO
analogous to Ontarios controlled
    acts proscriptions.

[84]

At first instance, the motion judge dismissed
    the Colleges application: 2014 QCCS 5886. He concluded that the online
    contract for the sale of ophthalmic lenses to a Quebec resident was made in
    British Columbia and governed by the law of that province. While the motion
    judge acknowledged, at para. 52, that the contract between an optometrist and
    his customer contains a professional health services aspect, he continued, at
    paras. 53 and 54, by writing:

[Translation] The law also reserves
an act
    which [] deals with [] sale
[of ophthalmic lenses] to members of the
    College. The connection between this reservation and the protection of the
    public seems less clear than the service portion and instead seems to confer an
    economic monopoly on professionals.

The Court is of the opinion that these
    economic objectives and the objectives concerning the protection of the public
    are distinct and severable. [emphasis in original]
[2]

[85]

The Quebec Court of Appeal dismissed the Quebec
    Colleges appeal, rejecting its primary argument that the word sale in the
    relevant provision of the
LSO
also covered the distribution of
    ophthalmic lenses in Quebec. In the course of its reasons, the Quebec Court of
    Appeal stated, at paras. 70 and 71:

[Translation] Finally, I would note that the
    Supreme Court teaches us that statutes that create professional monopolies
    which are permitted by law, where access to these monopolies is controlled and
    which protect their approved members who meet specific conditions to protect
    against competition, must be strictly applied. Anything which is not clearly
    defended may be performed with impunity by those who are not part of these
    associations.

As a result, it
    is my opinion that the appellant has not demonstrated that protection of the
    public requires interpreting the word sale in Section 16 of the
LSO
as
    meaning the distribution of a regulated product. The [Colleges] second
    argument must therefore be rejected.
Consequently
    delivery alone of ophthalmic lenses in Quebec, as is the case herein, cannot
    constitute a violation of Section 16 or of the first Section of Article 25, nor
    can it constitute illegal practice of optometry in Quebec
.
[3]
[Emphasis added]

[86]

While the specific language of the Quebec
    legislation differs from that in Ontario, I find persuasive the insight of the
    Quebec courts that the provision of prescription eyewear to a person involves a
    transaction combining the elements of a commercial sale with the provision of
    professional health care services. Prescription eyewear is not dispensed free
    of charge, and one component of eye glasses  the frames  quite often simply
    possesses an aesthetic or fashion aspect, not a health care one.

C.

Delivery

[87]

The final activity that the application judge
    characterized as a part of the controlled act of dispensing by Essilor is the
    delivery of a filled online order for prescription eyewear to a customer
    located in Ontario.

[88]

Essilor submits that the mere delivery of a
    package in Ontario does not amount to a controlled act in the course of
    providing health care services within the meaning of the
RHPA
s. 27. The
    Colleges advance a different position, contending that whatever steps Essilor
    performs in British Columbia, an Ontario customer does not obtain the health
    care service involving prescription eyewear until the product comes into his or
    her hands. Therefore, the Colleges argue, the delivery of a package containing
    prescription eyewear is more than the simple delivery of a thing; it is an
    integral activity in the provision of a health care service. As such, the act
    of delivery constitutes an element of the continuum of activity that makes up
    the controlled act of dispensing prescription eyewear.

[89]

Unfortunately, the decision of this court in
Wadden
offers little practical assistance in determining whether the mere delivery of
    prescription eyewear in Ontario in fulfilment of an online order is a
    controlled act. While this court found that dispensing may be a single act
    or part of a continuum of activities and pointed out that some activities,
    [c]arried out in isolation, might not in and of themselves constitute
    dispensing, all the acts at issue in
Wadden
were performed by the
    supplier in Ontario. The constitutional jurisdictional issue did not arise on
    the facts of that case.

[90]

I am persuaded by the Colleges submission that
    the delivery of prescription eyewear falls within the continuum of activities
    that make up the dispensing of such eyewear. It is difficult to see how a
    person can dispense prescription eyewear without delivering it. The transaction
    would remain incomplete until delivery was made, and the customer/patient would
    not obtain the benefit of the prescription eyewear until received.

[91]

However, that, in itself, would not lead me to
    conclude, as did the application judge at para. 66 of his reasons, that by
    delivering prescription eyewear to an Ontario customer in fulfilment of an
    online order Essilor acts contrary to the requirements of s. 27 of the
RHPA
.
    If all the acts along the continuum of activities, including delivery, were
    performed by a person situated in Ontario, whether the order was placed
    in-person or online, then a violation of s. 27(1) of the
RHPA
would be
    made out. But here, all the acts performed to fill an online order but one
    delivery  are performed out-of-province. To find a violation of the
RHPA
s. 27(1), a sufficient connection with Ontario must be demonstrated. I turn now
    to that key issue.

X.

SUFFICIENT CONNECTION

A.

The positions of the parties

[92]

The parties differ about the degree of
    connection required to establish a sufficient connection with Ontario under
    the
Unifund
test. Essilor submits that for a sufficient connection to
    exist, all aspects of the controlled act must take place in Ontario, whereas
    the Colleges contend that as long as some part of a controlled act occurs in
    Ontario, a sufficient connection exists.

[93]

I am not persuaded by either submission.
    Ascertaining whether a sufficient connection exists does not involve a numeric
    comparison of the acts Essilor performs in British Columbia with those in
    Ontario to provide prescription eyewear to an Ontario customer. A single act,
    such as delivery, may establish a sufficient connection, or it may not. The
Unifund
test requires a more qualitative inquiry into the relationship among the
    enacting jurisdiction, the subject matter of the legislation, and the
    individual or entity sought to be regulated.

B.

The
Unifund
analysis

[94]

With the greatest of respect to the application
    judge, I conclude that he incorrectly decided the constitutional issue of
    sufficient connection that lies at the heart of this case.

[95]

First, in finding the existence of a sufficient
    connection, the application judge erred in concluding that the placement of an
    online order by a customer in Ontario constitutes part of a controlled act
    performed by Essilor. It does not; it is an act of the customer, not an act of
    Essilor. As a result, it cannot form part of the controlled act of dispensing
    by Essilor.

[96]

Further, while the application judge correctly
    identified the purpose of the
RHPA
as regulating the nature and quality
    of health care services in order to protect the public, he did not acknowledge
    that some aspects of the continuum of activities constituting dispensing
    possess a commercial aspect involving no application of professional health
    care skills. The simple act of delivery of finished prescription eyewear,
    without more, is one such commercial aspect. And that is Essilors sole
    connection with Ontario in the case of its online sales.

[97]

As well, the application judge erred in his
    characterization of the purpose of the British Columbia regulatory regime,
    leading him to discount the fact that Essilor operates in compliance with the
    health care standards set by another Canadian province. The application judge
    concluded that the 2010 amendments to the British Columbia regulatory scheme
    changed its purpose from protecting health care to enhancing competition and consumer
    choice stating, at para. 92.

It is not clear to me how this change
    maintained public safety but it does not matter. What is clear is that the
    purpose behind the regulatory scheme in British Columbia changed. As noted by
    the respondent in its factum, British Columbia encourages online selling to
    enhance competition and consumer choice. That is different from the regulatory
    approach in Ontario. Here, the central purpose is health care. There is no
    justification for imposing the purpose of health professions legislation from
    British Columbia on those who reside in Ontario. To my mind, that would be a
    questionable breach of the territorial jurisdiction defined by Canadas federal
    system of government.

[98]

The evidentiary record did not disclose any shift
    in legislative purpose resulting from the 2010 amendments. Those amendments did
    not alter the statutory duties set out in s. 16(1) of the British Columbia
Health
    Professions Act.
It remains the duty of a college, such as the College of
    Optometrists and the College of Opticians, at all times (a) to serve and
    protect the public, and (b) to exercise its powers and discharge its
    responsibilities under all enactments in the public interest.

[99]

The distinctive feature of this case is that
    Essilor, as the online provider of prescription eyewear, operates out of a
    Canadian province that maintains a regulated health professions regime which
    closely resembles that in Ontario, save for the manner of selling prescription
    eyewear online. Essilor complies with the health care standards set by the
    British Columbia regulatory regime for the provision of prescription eyewear.
    The steps Essilor performs to meet those regulatory health care standards take
    place in British Columbia prior to the delivery of the product out-of-province.
    Given those circumstances, I would not regard the commercial act of the
    physical delivery of product ordered online to the customer in Ontario, without
    more, as establishing a sufficient connection with Ontario upon which to
    apply the controlled health care act proscriptions of the
RHPA
s. 27(1)
    to Essilors online transactions.

[100]

However, two other arguments must be addressed.

Essilors Toronto bricks-and-mortar store

[101]

First, the Colleges point to the presence of Essilors
    bricks-and-mortar store in Toronto as an indicia of a sufficient connection
    with Ontario. In their application, the Colleges do not allege that the store
    operates in contravention of the
RHPA
. However, they submit that the
    store funnels customers into the online store to complete purchases via
    in-store computers, thereby using staff on the ground in Ontario to solicit
    business for Essilors Websites. That activity, the Colleges argue,
    demonstrates a sufficient connection with Ontario to apply the
RHPA
s.
    27(1) to Essilors online prescription eyewear business.

[102]

On the record before the court, I am not persuaded by that argument.
    I acknowledge that in
Unifund
the absence of certain factors played a
    large role in leading the Supreme Court to conclude that no sufficient
    connection existed between Ontario and the Insurance Corporation of British
    Columbia (ICBC). At paras. 82 and 84, the court stated, in part:

The respondent, Unifund, points to the fact that the payments
    for which reimbursement is claimed were paid in Ontario by an Ontario insurer
    to an Ontario resident. This is true, but it leaves out of consideration the
    relationship between Ontario and the party sought to be made to pay, the
    out-of-province [ICBC].
Not only is the [ICBC] not authorized to sell
    insurance in Ontario, it does not in fact do so

Here, unlike [
R. v. Thomas Equipment Ltd.
, [1979] 2
    S.C.R. 529], the [ICBC] had not hired anyone in Ontario to promote its
    products. It was not in the Ontario marketplace
and, in my view, it was not
    required to comply with the rules of the [Ontario] game. The decision of
    the Ontario legislature to impose no-fault benefits on Unifund could not be
    bootstrapped into legislative jurisdiction to impose a corresponding debt on
    the [ICBC], which (leaving aside the PAU argument) was beyond the territorial
    jurisdiction of the province. [emphasis added]

[103]

In one respect, Essilor stands in a different relationship with
    Ontario than did the ICBC in the
Unifund
case because it operates a
    bricks-and-mortar store in Toronto. However, the only evidence adduced by the
    Colleges of an online purchase of prescription eyewear through Essilors
    bricks-and-mortar Toronto store came from one of the investigators retained by
    the Colleges, Ms. Tiffany OHearn Davies. She deposed that: she attended the
    store where a clerk assisted her in placing an online order; the clerk asked to
    see a copy of her prescription; the clerk referred her to a registered
    optician, who measured her pupillary distance; she asked to pick up the glasses
    at the store; and, when she did, a clerk directed her to the registered
    optician for a fitting.

[104]

The Colleges do not allege that the evidence of the investigators
    in-store placement of an online order discloses a contravention of the
RHPA
s. 27(1). A registered optician was involved in the in-store transaction
    described by the investigator. Essilors in-store regulatory-compliant
    transactions cannot establish the sufficient connection required to apply the
RHPA
s. 27(1) to Essilors general online prescription eyewear business through its
    Websites, which is the focus of the Colleges allegations in this application.

The sufficient connection by omission argument

[105]

The second argument is what I would
    describe as an attempt to apply the constitutional principle of sufficient
    connection to omissions, or acts not performed, by the out-of-province entity
    what I would term a sufficient connection by omission argument.

[106]

The context for this argument is the fact
    that when Essilor delivers prescription eyewear into Ontario in fulfilment of
    an online order placed through its Websites, it does not conduct any fitting or
    adjustment of the delivered product. That is a result of the British Columbia
    health professions regulatory regime that
authorizes
    the online supply of prescription eyewear without the need for an in-person
    fitting or adjustment upon delivery provided two conditions are met. The first
    condition is a positive one: in the case of eyeglasses, the supplier must have the
    individuals authorizing document  either a prescription from an optometrist
    or qualified medical practitioner or an assessment record produced by an
    independent automated refraction conducted by an authorized person; or, in the
    case of a contact lens, the contact lens record prepared by a person authorized
    to fit a contact lens. The second condition is a negative one: the supplier
    cannot dispense if an assessment record indicates refractive errors or changes
    in refractive errors of a prescribed magnitude. Provided it meets those
    conditions, Essilor complies with the British Columbia regulatory regime by
    shipping prescription eyewear to a customer in fulfilment of an online order
    without providing the service of fitting or adjusting the delivered product.

[107]

However, the application judge observed
    that under the Ontario regulatory regime, dispensing includes the fitting and
    adjustment of prescription eyewear to ensure the products carry out their
    corrective function.
Because Essilor does not fit or
    adjust the delivered product,
the application judge queried, at paras. 70
    and 71 of his reasons, how the law dealt with Essilors submission that it is
    not obliged to fulfil the responsibilities of fitting and adjusting. At para.
    90 of his reasons, the application judge offered a partial answer to his
    question by holding that the delivery of prescription eyewear to a person in
    Ontario represented a sufficient connection to Ontario.

[108]

The Colleges also hint at a sufficient connection by omission
    argument. They contend that by delivering prescription eyewear in Ontario
    without providing an in-person fitting or adjustment to the customer, Essilor
    somehow establishes a sufficient connection with Ontario for purposes of the
RHPA
.
    In their factum, the Colleges submit that a wide view must be taken of the
    concept of sufficient connection. Such a view goes beyond simply asking whether
    there is a connection between Ontario and the steps Essilor actually performs.
    The Colleges argue that the sufficient connection analysis must take into
    account the broader health protection purposes of the
RHPA
in assessing
    whether it applies to Essilors provision of health care devices to Ontario
    residents. This would include the need for a registered optometrist or optician
    to fit or adjust ordered prescription eyewear before a customer could leave
    with the product. Essilors failure to do so, the Colleges contend, is one
    factor that supports the existence of a sufficient connection to apply the
RHPA
s. 27 to Essilors online provision of prescription eyewear through its
    Websites.

[109]

I am not persuaded by the sufficient connection by omission
    argument. In the circumstances of this case, acceding to such an argument would
    effectively prohibit Ontario consumers from purchasing prescription eyewear
    online from a supplier in another province, where the supplier has complied
    with that provinces health professions regulatory regime, unless delivery of
    the product is channelled through the office of an Ontario optometrist or
    optician. Applying the constitutional principle of territorial limits on the
    scope of provincial legislative authority in that way would in effect sanction
    the creation of a monopoly over the importation of prescription eyewear into
    Ontario from other provinces.

[110]

Indeed, that is how the College of Optometrists has drafted its
    Internet Therapy Standard. Under that Standard, all steps in the purchase of
    prescription eyewear, but one, can be done online. The one step that requires
    an in-person attendance by the customer is the delivery of the prescription eyewear.
    The Standard effectively funnels the delivery of all prescription eyewear
    through the businesses of Ontario optometrists and opticians.

[111]

I am not prepared to apply the sufficient connection principle to
    work such a result in the absence of clear language in Ontario legislation
    requiring it.  Put another way, if the Ontario Legislature wishes to compel
    Ontario consumers to attend the office of an Ontario optometrist or optician in
    order to pick up prescription eyewear that the consumer has ordered online from
    a regulatory-compliant supplier in another Canadian province, then the Ontario
    Legislature must use clear statutory language imposing such a restriction on
    Ontario consumers.

C.

The other jurisprudence relied upon by the Colleges and the
    application judge

[112]

In my view, that conclusion is not altered by the other cases upon
    which the  application judge drew to support his conclusion that a sufficient
    connection to Ontario existed to support the application of the
RHPA
s. 27 to Essilors online sales through its Websites:
Celgene
;
Global
    Pharmacy
;
Torudag v. British Columbia (Securities Commission)
,
    2011 BCCA 458, 343 D.L.R. (4th) 743, leave to appeal to S.C.C. refused, [2012]
    S.C.C.A. No. 21;
SOCAN
; and
Google Inc. v. Equustek Solutions Inc
.,
    2017 SCC 34, [2017] 1 S.C.R. 824.

[113]

The Colleges agree with the application judges use of these cases;
    Essilor either distinguishes them or draws from them other principles in
    support of its position. While each case illustrates, in a different way, the
    challenges posed by online transactions to various kinds of regulatory or
    judicial activity, they provide little in the way of concrete guidance for the
    present case. Nevertheless, since the parties and the application judge rely on
    them, let me consider each briefly.

Celgene

[114]

Celgene
considered the supportability
    of a decision of the Patented Medicine Prices Review Board under the
Patent
    Act
, R.S.C. 1985, c. P-4. Under the Act, a patentee was required to
    provide the Board with prescribed information respecting the price at which
    the medicine is being or has been sold in any market in Canada and elsewhere.
    Celgene distributed the drug Thalomid. The company was located in New Jersey.
    However, it obtained a Canadian patent for the drug, thereby becoming a
    patentee. At that point, the Board requested pricing information about
    Celgenes sale of the drug from New Jersey into Canada. Celgene refused, taking
    the position that under commercial law principles its sales to Canadian
    customers were made in New Jersey.

[115]

The Board held that because its mandate included protecting
    Canadians from excessive drug prices, sales in any market in Canada included
    sales of medicine regulated by Canadian law that would be delivered and used in
    Canada. The Supreme Court acknowledged that while the language of selling in
    any market in Canada could lend itself to different interpretations, it
    accepted the Boards interpretation of the phrase. Critical to the courts
    conclusion was its view that the Board was justified in taking into account
    its responsibility for ensuring that the monopoly that accompanies the
    granting of a [Canadian] patent is not abused to the financial detriment of
    Canadian patients and their insurers: at paras. 29 and 30.

[116]

The Quebec Court of Appeal, at para. 33 of
Ordre des
    optométrists du Québec
, noted the significance of the fact that Celgene
    was the holder of a Canadian patent to the finding that the Board had
    jurisdiction over it.

Global Pharmacy

[117]

Global Pharmacy
involved a complaint by
    the Ontario College of Pharmacists that certain companies were operating a
    pharmacy in Ontario without accreditation and committing related regulatory
    breaches. In general terms, the companies: accepted online orders for
    prescription drugs from customers in the United States; processed the orders,
    including payments, at an Ontario office; sub-contracted the filling of the
    orders to companies in India; and directed the Indian companies to ship the
    filled orders to the customers in the United States. At the time of the
    complaint, the companies did not sell drugs to consumers in Ontario.

[118]

This court applied the
Unifund
principles; its reasons
    disclose that the case turned on the clear findings of fact made by the
    application judge. Those findings showed that the substance of the sale
    transactions took place through an Ontario corporation that was located and
    operated in Ontario: at para. 62. A sufficient connection with Ontario existed
    because the companies Ontario office was home to the only staff that deal
    with Global Pharamacy Canada customers: at para. 71. In those circumstances,
    the Ontario College of Pharmacists had jurisdiction to regulate the sale of
    drugs by the companies to American customers. Those are quite different facts
    from those found in the present case.

Torudag

[119]

Torudag
was an insider trading case. At
    issue was the jurisdiction of the British Columbia Securities Commission to
    conduct an administrative hearing into a series of stock purchases made by
    Torudag, which were alleged to violate provincial insider trading prohibitions.
    Torudag did not reside in British Columbia. He bought his shares through an
    online account with a brokerage based outside of British Columbia. Torudag
    argued that the Commission had no jurisdiction to proceed against him. The
    Commission held that it did, a decision upheld by the British Columbia Court of
    Appeal.

[120]

While that court engaged in a discussion about how, in the world of
    electronic commerce, physical location can become almost incidental, with other
    factors assuming greater importance in a jurisdictional analysis, its decision
    did not turn on the nuances of online commerce: at paras. 20-22. The court
    identified two key factors that established a sufficient connection between the
    regulator and the transactions: (i) Torudag purchased shares of a company that
    was a reporting issuer in British Columbia; and (ii) his purchases were
    performed through the facilities of the TSX Venture Exchange which, under an
    agreement amongst Canadian securities administrators, was regulated by the
    British Columbia Securities Commission in order to protect the investing
    public: at para. 26. The case stands for the proposition that a securities
    commission has the jurisdiction to initiate administrative insider trader
    proceedings in respect of trades in the securities of a reporting issuer in its
    home jurisdiction, facilitated through its home exchange. Again, this case
    involves significantly different facts from those in the present case.

SOCAN

[121]

The
SOCAN
case involved the issue of who should compensate
    musical composers and artists for their Canadian copyright in music downloaded
    in Canada from a foreign country via the Internet. The Copyright Board had
    rejected the effort by the Society of Composers, Authors and Music Publishers
    of Canada to impose liability for royalties on the various Internet Service
    Providers located in Canada irrespective of where the transaction originated.

[122]

Although the Supreme Court engaged in a review of policy options
    available to regulate online transactions in music, it upheld the Boards
    decision based on the interpretation of the applicable legislation. It stated,
    at para. 5, that:

Parliament has spoken on this
    issue. In a 1988 amendment to the
Copyright Act
, R.S.C. 1985,
    c. C-42
, it made it clear that Internet
    intermediaries, as such, are not to be considered parties to the infringing
    communication. They are service providers, not participants in the
content
of
    the communication. In light of Parliaments legislative policy, when applied to
    the findings of fact by the Copyright Board, I agree with the Boards
    conclusion that as a matter of law the appellants did not, in general,
    communicate or authorize the communication of musical works in Canada in
    violation of the respondents copyright within the meaning of the
Copyright Act
.

Google

[123]

Finally, the issue in the
Google
case was whether a British
    Columbia court had the jurisdiction to issue an interlocutory injunction
    enjoining Google from displaying any part of a defendants websites on any of
    its search results worldwide in order to give effect to an earlier court order
    directing the defendant to cease carrying on business through any website.
    Google contested the jurisdiction of the court to make such an order on two
    grounds: (i) the order affected a non-party to the litigation; and (ii) the
    court could not issue an injunction that had extraterritorial effect. The
    Supreme Court upheld the injunction. Although its decision commented on the new
    reality of online commerce and advertising, the court upheld the injunction
    based on the existing jurisprudence that interlocutory injunctions could bind
    non-parties and have extraterritorial effect where the issuing court had
in
    personam
jurisdiction over the defendant: at paras. 28 and 36-38.

[124]

While all these cases discuss aspects of the challenges to
    regulating various kinds of online commercial transactions, none address
    circumstances analogous to those of the present case: i.e., whether a supplier
    of prescription eyewear that complies with the regulated health care regime of
    its home province performs a controlled act under Ontario legislation by
    delivering online-ordered eyewear to the residents of Ontario. Consequently,
    the cases provide little guidance to the specific circumstances of this case.

D.

Conclusion

[125]

The key issue on this appeal concerns the territorial restrictions
    on the legislative competence of Ontario regarding the dispensing of
    prescription eyewear, specifically the constitutional application of the
    controlled act provisions of the
RHPA
to Essilors online sales of
    prescription eyewear through its Websites:
Unifund
, at paras. 50-56. For
    the reasons set out above, I conclude that the application judge incorrectly
    held that ss. 27(1) and (2) of the
RHPA
are constitutionally applicable
    to Essilors online sales of prescription eyewear to customers in Ontario: a
    customers placement of an order from an Ontario-located device does not amount
    to the performance by Essilor of part of the controlled act of dispensing; and,
    the mere delivery in Ontario of an order for prescription eyewear that has been
    processed in compliance with the British Columbia regulatory regime, without
    more, does not establish a sufficient connection between Essilors online sales
    and the controlled acts proscribed by the
RHPA
s. 27.

[126]

In other words, the dispensing of prescription eyewear, as that
    term is used in the
RHPA
s. 27(2), includes the delivery of the
    product to the patient or customer. However, the discrete act of delivering
    eyewear to a person primarily has a commercial aspect, not a health care one:
    delivery completes the order placed by the customer. Where the supplier of the
    prescription eyewear operates in another province and complies with that
    provinces health professions regulatory regime when filling an online order
    placed by an Ontario customer, the final act of delivering that product to the
    Ontario purchaser does not amount to the performance of a controlled act by
    the supplier within the meaning of the
RHPA
s. 27(1).

[127]

That is because a sufficient connection, within the meaning of the
Unifund
analysis, does not exist between the acts of the supplier  Essilor  and the
    Ontario health professions regulatory regime to support the application of the
RHPA
to the suppliers online sales. As explained, a finding that a sufficient
    connection exists between Essilors online sales through its Websites and the
RHPA
,
    on the record before this court, would amount to using Ontarios health
    professions regulatory legislation to grant Ontario optometrists and opticians
    a monopoly over the commercial importation of prescription eyewear into
    Ontario. If the Ontario Legislature wishes to grant a commercial monopoly to
    Ontarios optometrists and opticians over the distribution of orders for
    prescription eyewear placed online with regulatory-compliant suppliers in other
    provinces, then the Legislature must adopt language that clearly allows such a
    monopoly in order to comply with the constitutional principle of territorial
    legislative restriction. The present language of the
RHPA
ss. 27(1) and
    (2) is insufficient to do so.

XI.

DISPOSITION

[128]

Accordingly, I would allow the appeal, set aside the order of the
    application judge, and dismiss the application.

[129]

Based on the agreement of the parties, I would award Essilor its
    partial indemnity costs of the appeal fixed at $53,029.34, inclusive of
    disbursements and applicable taxes.

Released: RGJ APR 4 2019

David
    Brown J.A.

I
    agree. R.G. Juriansz J.A.

I
    agree. Grant Huscroft J.A.

APPENDIX A: THE BRITISH COLUMBIA REGULATORY REGIME

Opticians Regulation
,
    s. 5(3):

5 (3) Subject to sections 6 and 8 of
    the Schedule to this regulation, nothing in this regulation prevents a person
    from

(a) dispensing a corrective eyeglass
    lens, if the person who dispenses it has possession of

(i)       an electronic or a written copy of an authorizing document
    in respect of the individual for whose use the corrective eyeglass lens is to
    be dispensed, or

(ii)      information contained in an authorizing document and
    provided to the person, in written or electronic form, by or on behalf of the
    individual for whose use the corrective eyeglass lens is to be dispensed,
    accompanied by a statement from that individual certifying the existence and
    validity of the authorizing document and the accuracy of the information
    provided,

and if the person dispenses the
    corrective eyeglass lens in accordance with the authorizing document described
    in subparagraph (i) or the information described in subparagraph (ii), as
    applicable;

(b) dispensing a contact lens, if
    the person who dispenses it has possession of

(i)

an electronic or a written copy of a contact
    lens record in respect of the individual for whose use the contact lens is to
    be dispensed, or

(ii)

information contained in a contact lens record
    and provided to the person, in written or electronic form, by or on behalf of
    the individual for whose use the contact lens is to be dispensed, accompanied
    by a statement from that individual certifying the existence and validity of
    the contact lens record and the accuracy of the information provided,

and if the person dispenses the
    contact lens in accordance with the contact lens record described in
    subparagraph (i), or the information described in subparagraph (ii), as
    applicable;

(c) dispensing a duplicate of a
    corrective eyeglass lens, with no change in refractive value, using a
    lensometer or similar device.

Sections
    6 and 8 to the Schedule to the
Opticians Regulation
:

6.
Corrective
    eyeglass lenses must not be dispensed, and a contact lens must not be fitted or
    dispensed, on the basis of an assessment record, in any of the following
    circumstances:

(a) the assessment record indicates
    that there has been a change in refractive error exceeding

(i)       plus or minus 1.00 dioptre in either eye within the
    previous 6 months, or

(ii)      plus or minus 2.00 dioptres in either eye since the date
    of the most recent prescription or assessment record, if any, provided by the
    client to the registrant;

(b) the assessment record indicates
    that

(i)       there is refractive error exceeding plus or minus 6.00
    dioptres in either eye, or

(ii)      prisms might be required;

(c) the best corrected visual acuity
    will be less than 20/25 in either eye;

(d) the client is not satisfied with
    the client's best corrected vision after 2 contemporaneous independent
    automated refractions have been conducted.

8.
Sections
    1 to 5 and 6 (a) to (c) of this Schedule do not apply if a prescriber who has
    performed an eye health examination of the client has requested a registrant to
    conduct an independent automated refraction on the client.

APPENDIX
    B: ONTARIO COLLEGE OF OPTOMETRISTS SPECTACLE THERAPY POLICY

Reviewing factors affecting spectacle wear
: Optometrists must review, with patients,
    factors affecting spectacle wear. This can be done either in-person, or by
    telephone, video conference, or
online
    questionnaire
. If
    this review is not performed in-person, optometrists should include a
    precaution for patients that in-person reviews are recommended for individuals
    with special needs or atypical facial and/or postural features. If optometrists
    choose specific patient factors by which to limit their internet dispensing
    services, including, but not limited to, a specific age range, this should be
    disclosed on the website where patients can easily find it.

Reviewing the details of the prescription
: Optometrists must review prescription
    details. This can be done in-person or
using
    the internet
.
    Optometrists are responsible for confirming the validity and/or veracity of
    prescriptions and must have a mechanism in place to do so. Prescriptions
    provided using the internet must be provided in a secure manner and collected
    in an unaltered form (pdf/image). All prescriptions must contain information
    that clearly identifies the prescriber (including name, address, telephone
    number and signature), and specifies the identity of the patient and the date
    prescribed (OPR 5.2 The Prescription). All prescriptions must include an expiry
    date.

Advising the patient regarding appropriate ophthalmic materials
: Optometrists must advise patients
    regarding appropriate ophthalmic materials. This may be done in-person or by an
online algorithm
. In the latter scenario, patients must be
    given clear directions on how to contact the office/optometrist with any
    questions they may have.

Taking appropriate measurements
: Optometrists must take appropriate measurements when
    providing spectacle therapy. These can be done in-person or
by computer application
.
If computer applications are used (in-office or

remotely
) to determine dispensing measurements, optometrists
    must be satisfied that the application determines these measurements with equal
    accuracy to traditional in-person measurements, including the production of
    supportable evidence should this matter come to the attention of the College.

Arranging for the fabrication of the spectacles:
Optometrists must review the suitability
    of patient orders before arranging for the fabrication of spectacles.

Verifying the accuracy of the completed spectacles
: Optometrists must verify the accuracy of
    completed spectacles.

Fitting or adjusting the spectacles to the patient
: Fitting or adjusting the spectacles to
    patients must be performed in-office and
cannot
    be performed virtually
,
    by tutorial and/or video conferencing. Optometrists providing spectacle therapy
    will possess the equipment required to fit and adjust spectacles. In-person
    fitting and adjusting of spectacles provides a final verification and mitigates
    risk of harm by confirming that patients leave the clinic with spectacles that
    have been properly verified, fit and adjusted. In-person delivery of spectacles
    establishes a patient/practitioner relationship in circumstances where patients
    are new to the clinic and spectacle therapy was initiated through the
    optometrists website.

Counseling the patient regarding spectacle wear
: Counseling regarding spectacle wear is
    ongoing and involves in-office, telephone, and/or electronic communications.

[1]

The B.C.
Opticians Regulation
defines an
    authorizing document as either of a prescription for a corrective eyeglass
    lens or an assessment recordproduced by an independent automated refraction
    conducted by a person who is authorized under the Act to conduct independent
    automated refractions. A contact lens record means the record, prepared by
    a person authorized under the Act to fit a contact lens, of the contact lens
    specifications derived from fitting a contact lens using information contained
    in an authorizing document.

[2]
[53]
Le législateur réserve
    aussi aux membres de lOrdre tout acte «
ayant pour objet
[]
la
    vente
[de lentilles ophtalmiques] ». Cette réserve semble avoir
    un lien moins clair avec la protection du public que la portion service et
    semble plutôt viser à conférer un monopole économique aux professionnels.

[54] Le Tribunal est davis que ces objectifs économiques
    et de protection du public sont distincts et dissociables.

[3]

[70] Je rappelle enfin que la Cour suprême
    enseigne que les lois qui créent des monopoles professionnels sanctionnés par
    la loi, dont laccès est contrôlé, et qui protègent leurs membres agréés qui
    remplissent des conditions déterminées contre toute concurrence, doivent être
    strictement appliquées. Tout ce qui nest pas clairement défendu peut être fait
    impunément par tous ceux qui ne font pas partie de ces associations
[70]
.

[71] En conséquence, jestime que lappelant na pas démontré que la
    protection du public requiert dinterpréter le mot « vente » dans larticle
    16
LSO
comme signifiant la distribution dun produit
    réglementé. Son second moyen doit donc être rejeté. Il en résulte que la seule
    délivrance de lentilles ophtalmiques au Québec, comme cest le cas en lespèce,
    ne peut constituer une contravention à larticle 16 et au premier alinéa de
    larticle 25 ni lexercice illégal au Québec de loptométrie.


COURT OF APPEAL FOR ONTARIO

CITATION: Crescent Hotels and Resorts Canada Company v.
    2465855 Ontario Inc., 2019 ONCA 268

DATE: 20190404

DOCKET: C66013

Lauwers, Benotto and Brown JJ.A.

BETWEEN

Crescent Hotels and Resorts Canada Company

Plaintiff (Respondent)

and

2465855 Ontario Inc.

Defendant (Appellant)

David Woodfield, Matthew Karabus and Heyla Vettyvel, for
    the appellant

Tim Pinos and Carly Cohen, for the respondent

Heard: March 29, 2019

On appeal from the judgment of Justice Carole J. Brown of
    the Superior Court of Justice, dated September 21, 2018 with reasons reported
    at 2018 ONSC 5508.

REASONS FOR DECISION

I.        OVERVIEW

[1]

The appellant, 2465855 Ontario Inc. (the Owner), owns a hotel in
    Toronto. On July 22, 2015, the Owner entered into a Hotel Management Agreement
    with the respondent, Crescent Hotels and Resorts Canada Company (the
    Manager), for a term of 10 years.

[2]

In May 2016, the Owner terminated the Agreement. The Owner contended that
    it was entitled to terminate for Cause-Manager which, under the Agreement,
    was defined to include the occurrence of a default under this Agreement of
    which Manager receives written notice (as provided in Section 12.5), that is
    not cured prior to the lapse of any applicable notice and grace periods set
    forth in Section 12.11. Section 12.11(a) of the
    Agreement defined events of default as including the failure of a party to
    perform, keep or fulfill a covenantin any material respect and the
    continuance of such a failure for more than 30 days after receipt of a notice
    of default.

[3]

In letters dated April 7 and 8, 2016, the Owner enumerated complaints
    about the Managers performance. In its letter of April 19, 2016, the Owner
    advised the Manager that those complaints constituted events of default under
    the Agreement which, if not cured by May 7, 2016, would result in the
    termination of the Agreement. The Manager disputed that the complaints amounted
    to events of default and contended that the Owner had failed to give proper
    notice. By letter dated May 11, 2016 the Owner terminated the Agreement,
    effective May 20, 2018.

[4]

The Manager brought this action alleging that the Owner lacked cause to terminate
    the Agreement. It argued that the Owner was required to pay the Manager an
    early termination fee pursuant to s. 4.2(b) of the Agreement because the Owner
    had terminated the Agreement without cause during the first two years of the
    term of this Agreement.

[5]

The Manager moved for summary judgment for payment of the early
    termination fee, together with certain expenses. The motion judge granted
    summary judgment for those amounts, which totalled $1,026.652.44, plus costs.

[6]

We dismissed the Owners appeal at the hearing, with reasons to follow.
    These are those reasons.

II.       ANALYSIS

[7]

The Owner advances several grounds of appeal.

Failure to invoke expressly the
    rule 20.04(2.1) evidence-assessment powers

[8]

First, the Owner submits that the motion judge erred in principle
    because, having stated that she was not exercising her evidence-assessment
    powers under r. 20.04(2.1) of the
Rules of Civil Procedure
, she in
    fact did so, writing at para. 19 of her reasons that she had weighed the
    evidence contained in the affidavits. The Owner contends that the motion judge
    erred in principle by weighing evidence without expressly invoking her
    evidence-assessment powers.

[9]

Under r. 20.04(2.1), in determining whether there is a genuine issue
    requiring a trial, a judge may exercise several evidence-assessment powers:
    weighing the evidence; evaluating the credibility of a deponent; and drawing
    any reasonable inference from the evidence. These powers are presumptively
    available to a motion judge; they are not exceptional; and they may be
    exercised provided their use is not against the interests of justice:
Hryniak
    v. Mauldin
, 2014 SCC 7, [2014] 1 S.C.R. 87 at paras. 66 and 67. Where
    factual disputes exist on the written motion record, a judge most likely will
    resort to such powers when evaluating whether a genuine issue requiring a trial
    exists.

[10]

It
    follows that where a judge weighs the evidence filed on a summary judgment
    motion  as the reasons of the motion judge in this case clearly disclose that
    she did  the judge should acknowledge candidly that she is exercising her r.
    20.04(2.1) powers and then go on to explain the basis for any resulting
    findings of fact. In this case, the better course would have been for the
    motion judge to make such an acknowledgement. However, at the end of the day,
    the motion judge simply employed evidence-assessment powers that were otherwise
    available to her under r. 20.04(2.1) and she explained the basis for her
    findings. In those circumstances, we see no error in principle that would merit
    appellate intervention.

The test for failure to perform
    a covenant in any material respect

[11]

As
    noted, s.12.11(a) of the Agreement defined events of default as including the
    failure of a party to perform, keep or fulfill a covenant
in any material respect
 and the continuance of such a
    failure for more than 30 days after receipt of a notice of default. [emphasis
    added] In para. 25 of her reasons, relying on the decision in
Guarantee
    Company of North America v. Gordon Capital Corp.
,
[1999]
    3 S.C.R. 423, at para. 44,
the motion judge held that a [m]aterial
    breach is one that is material, substantial and goes to the root of the
    contract. As applied to the covenants in the Agreement, it would be a breach
    that deprived the Owner of the entirety of all benefits of the contract or the
    very thing the parties contracted for.

[12]

The
    Owner submits the motion judge erred in interpreting the phrase in any
    material respect in the Agreement as requiring that a breach rise to the level
    of one that goes to the root of the contract in order for the Owner to assert
    it as an event of default.

[13]

We
    accept that the motion judge misinterpreted the term in any material respect
    in the Agreement. Her contractual interpretation analysis ignored the very
    language of s. 12.11(a)(i) of the Agreement, which contemplates that a party
    could assert, as an event of default, the failure to perform a covenant yet the
    defaulting party could cure the breach upon receipt of a notice of event of
    default. Breaches capable of being cured under s. 12.11(a)(i) therefore could
    include ones far less serious than a breach going to the root of the contract.

[14]

Notwithstanding
    that interpretative error, a reading of the motion judges reasons as a whole
    leads us to conclude that the error did not affect her analysis regarding the
    breaches alleged by the Owner. After reviewing each of the alleged breaches,
    the motion judge concluded that the Owner had failed to prove any of the
    breaches above: at para. 26.  As we discuss below, those findings of the
    motion judge were anchored firmly in the record and in the language of the
    Agreement, and they are free from reversible error.

The interim man
a
ger

[15]

The
    next ground of appeal concerns the Managers temporary appointment of Ms. Linda
    Westgate as interim manager of the hotel during the first few months of the
    Agreement. There is no dispute that under s. 1.1(lll) of the Agreement the
    Manager could appoint an interim manager pending the Owners approval of a
    permanent general manager (s. 2.2(b)(ii)). Ms. Westgates tenure as interim hotel
    manager ran from September through until the end of November 2015, when she was
    replaced by the new General Manager, Olivier Rochefort.

[16]

In
    its April 7, 2016 letter, the Owner alleged that Ms. Westgate did not have the
    necessary working visa when she served as the interim manager. The Owner
    characterized this as one of the events of default on which it was relying to
    terminate the Agreement for Cause-Manager.

[17]

The
    Owner submits the motion judge erred by accepting an unsubstantiated hearsay
    allegation in the Managers evidence that Ms. Westgate was not working in
    Canada illegally. We do not give effect to this ground of appeal for two
    reasons.

[18]

First,
    in her affidavit on behalf of the Owner, Ms. Zhang asserted that she had
    learned that Ms. Westgate never secured proper Canadian work documentation, but
    Ms. Zhang failed to disclose the source of that information, contrary to r.
    20.02(1). By contrast, in his reply affidavit for the Manager, Mr. Cohen
    disclosed the source of his information that a representative of the Manager
    would have written to Canadian immigration authorities regarding Ms. Westgates
    temporary employment in Canada.

[19]

Second,
    under the Agreement, an event of default that could justify termination for
    Cause-Manager had to amount to a failure to perform a covenant in any material
    respect that was not cured within 30 days after receipt of notice of default.
    The Owner took the position that it gave formal notice of default on April 7,
    2016, yet Ms. Westgates tenure as interim manager had ended some four months earlier,
    upon the appointment of a permanent general manager. Simply put, when the Owner
    gave notice of default there was no event of default regarding Ms. Westgate
    left to cure. In those circumstances, the Manager was not in breach of a
    covenant in the Agreement in respect of Ms. Westgate that could justify
    termination for Cause-Manager.

The permanent General Manager

[20]

The
    Owner submits that the motion judge erred in failing to find that the Manager
    breached the Agreement by appointing Mr. Rochefort as General Manager in
    November 2015 as he was unqualified for the position. The motion judge rejected
    the Owners argument, holding that it was the owners final decision to hire
    Olivier Rochefort after considering and rejecting other candidates presented by
    Crescent: at para. 15. That finding was fully supported by the record, which clearly
    showed that the Owner had approved the hiring of Mr. Rochefort pursuant to s.
    2.2(b)(ii) of the Agreement.

[21]

As
    well, the Owner contended that the Manager failed to fire Mr. Rochefort in a
    timely manner. The evidence did not support that assertion. Towards the end of
    February 2016, the Owner insisted that the Manager fire Mr. Rochefort. On March
    24, 2016 the Manager advised the Owner that it accepts the termination of [Mr.
    Rochefort] from the general manager position. As the Owner acknowledges in its
    factum, Mr. Rochefort was terminated at that time. Nevertheless, as part of its
    April 7, 2016 notice letter, the Owner required that the Manager immediately
    terminate Mr. Rochefort, failing which the Owner would terminate the Agreement
    for cause.  Whatever the purpose of the Owner making such further demand given
    the Managers earlier acceptance of the decision to terminate Mr. Rochefort, after
    receipt of the Owners particularized notice of April 19, 2016, the Manager
    confirmed again, on April 26, 2016, that it had transitioned Mr. Rochefort from
    the hotel. That was well within the 30-day cure period.

The 2016 Budget

[22]

Finally,
    the Owner contends that the motion judge erred by failing to find that the
    Manager had breached the budget-preparation provisions of Article 7 of the
    Agreement. We see no error in the motion judges finding, at para. 15, that the
    Owner approved the 2016 budget. On her cross-examination, Ms. Zhang, the
    Owners representative, clearly admitted that the 2016 budget ultimately was
    approved.

[23]

In
    any event, the budget was part of the Annual Plan described in Article 7 of the
    Agreement. Section 7.2 provided that in the event the Owner did not approve the
    Annual Plan proposed by the Manager, the Manager would continue to operate the
    hotel in accordance with the standards contained in the Agreement, pending
    settlement of a mutually agreeable Annual Plan. There was no dispute that the
    Manager submitted an Annual Plan, which included a budget. Accordingly, by the
    terms of the Agreement the Owner could not rely on its own refusal to approve
    the Plan as an event of default to terminate for Cause-Manager.

Summary

[24]

For
    these reasons, we see no reversible error in the motion judges conclusion that
    there was no genuine issue requiring a trial in respect of the Managers
    entitlement under the Agreement to the early termination fee. Since the Owner
    does not take issue with the motion judges calculation of the early
    termination fee and the other items making up the judgment amount, that is
    sufficient to dispose of the appeal. There is no need to deal with the further
    ground of appeal concerning the adequacy of the Owners notice of default.

III.      DISPOSITION

[25]

The
    appeal is dismissed.

[26]

The
    respondent Manager is entitled to its costs of the appeal fixed in the amount
    of $20,000, inclusive of disbursements and applicable taxes.

P. Lauwers J.A.

M.L. Benotto J.A.

David Brown J.A.