DATE: 20011210
DOCKET: C36106
COURT OF APPEAL FOR ONTARIO
McMURTRY C.J.O., ROSENBERG AND SIMMONS JJ.A.
B E T W E E N:
SANDRA WADDEN AND KING OPTICAL GROUP INC. (carrying on business as Braddock Optical)
Joshua Liswood for the appellant
Applicants (Appellants)
- and -
COLLEGE OF OPTICIANS OF ONTARIO
David C. Rosenbaum and Karyn Wasserstein for the respondent
Respondent
Heard: November 20, 2001
On appeal from an Order of Justice Norman D. Dyson dated January 18, 2001.
SIMMONS J.A.:
[1] Sandra Wadden and King Optical Group Inc. (“Braddock Optical”) appeal from an order of a Superior Court judge dated January 18, 2001, upholding convictions entered and sentences imposed by an Ontario Court judge on November 15, 1999 and December 13, 1999 respectively, on charges laid under ss. 27(1), 27(2), 40(1), and 42(1) of the Regulated Health Professions Act, 1991, S.O. 1991, c. 18, as amended (RHPA), and s. 77(1) of the Provincial Offences Act, R.S.O. 1990, c. P. 33 (POA).
[2] Ms. Wadden was convicted of performing the controlled act of dispensing eye glasses for vision or eye problems in the course of providing health care services to an individual without being a member authorized by a health professions act, to perform the controlled act. Braddock Optical was convicted on the basis of being Ms. Wadden’s employer.
[3] The issues on appeal are whether the retail sale of prescription eye glasses falls within the scope of “providing health care services to an individual”, and what constitutes the proper definition of “dispensing” prescription eye glasses under the RHPA. A specific issue arises concerning whether “risk of harm” plays any role in the definition of these concepts.
Background
[4] While working at Braddock Optical on February 6, 13 and 19, 1997, Ms. Wadden served and sold a pair of prescription bifocal eye glasses to a Mr. Barker. Ms. Wadden was the only employee working during the times in question. Mr. Barker is a private investigator hired by the College of Opticians of Ontario (the “College”).
[5] Ms. Wadden was a registered optician for eye glasses in Nova Scotia. Following a move to Ontario, she chose not to pursue the four-year program required for her to register here.
[6] In making a finding of guilt against Ms. Wadden, the trial judge noted that the [RHPA](https://www.canlii.org/en/on/laws/stat/so-1991-c-18