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St. John's, Newfoundland and Labrador, Canada

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Revised Statutes of Newfoundland 1990


CHAPTER O-7

AN ACT RESPECTING THE NEWFOUNDLAND ASSOCIATION OF OPTOMETRISTS AND GOVERNING THE PRACTICE OF OPTOMETRY IN THE PROVINCE

Analysis

1. Short title

2. Definitions

3. Non-application of Act

4. Ophthalmic dispensing

5. Association of optometrists

6. Objects

7. Powers of association

8. By-laws

9. Membership

10. Meetings

11. Council

12. Optometric board

13. Appointments published

14. Chairperson and registrar

15. Seal

16. Quorum

17. Examination

18. Registration

19. Results of examination

20. Meetings

21. Duties of board

22. Duties of registrar

23. Inspection of register

24. Interpretation of terms

25. Licence

26. Regulations

27. Issuing of licences

28. Annual renewals

29. Expiry of licence

30. Amount of fees

31. Use of fees

32. Recovery of fees

33. Disciplinary action

34. Appeal

35. Evidence of registration

36. Inspection

37. Use of certain titles

38. Fees

39. Action for negligence

40. General exemptions

41. Use of trade name

42. Referral

43. Diagnostic drugs

44. Offences and penalties

45. Proof


Short title

1. This Act may be cited as the Optometry Act.

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Definitions

2. In this Act

(a) "association" means the Newfoundland Association of Optometrists;

(b) "board" means the Newfoundland Optometric Board;

(c) "licence" means a licence to practise optometry issued and in force under this Act and includes the renewal of a licence, and "licensed" has a corresponding meaning;

(d) "minister" means the Minister of Health;

(e) "ophthalmic appliances" means lenses, spectacles, eyeglasses, artificial eyes, contact lenses, or accessories for the relief or correction of a visual or muscular error or defect of the eye;

(f) "ophthalmic dispensing" means

(i) the supplying, preparing and dispensing of ophthalmic appliances,

(ii) the interpreting of prescriptions of optometrists or medical practitioners, and

(iii) the fitting, adjusting and adapting of ophthalmic appliances to the human face and eyes in accordance with the prescriptions of optometrists or medical practitioners;

(g) "optometrist" means a person who through specialized education, training and experience is skilled in the principles and practice of optometry;

(h) "optometry" means the services usually performed by an optometrist, and includes the measurement of or attempt to measure the refractive or muscular condition of the eye, the prescribing and ophthalmic dispensing of ophthalmic appliances, and the prescribing of orthoptic treatment for the relief or correction of a visual or muscular error or defect of the eye;

(i) "practice of optometry" includes 1 or more of the acts referred to in paragraph (h);

(j) "practitioner" means an optometrist licensed to practise under this Act;

(k) "prescribe" means to write or determine a formula or prescription other than for drugs for the relief or correction of a visual or muscular error or defect of the eye, and "prescribing" has a corresponding meaning;

(l) "register" means the Newfoundland Optometric Register referred to in paragraph 22(b);

(m) "registered" means registered by the board under this Act as a person qualified to practise optometry in the province, and "registration" has a corresponding meaning; and

(n) "registrar" means the registrar designated under section 14.

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Non-application of Act

3. This Act does not apply to or affect

(a) a medical practitioner registered under the laws of the province;

(b) a registered nurse, or a person authorized by another Act or regulation, who checks the visual acuity of a person; or

(c) a person who provides orthoptic services under the direction of a medical practitioner.

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Ophthalmic dispensing

4. A person engaged solely in ophthalmic dispensing shall not be considered to be practising optometry within the meaning of this Act, and this Act does not apply to or affect that person.

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Association of optometrists

5. The Newfoundland Association of Optometrists is continued as a corporation.

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Objects

6. The objects of the association are

(a) to promote and advance optometric and related arts and sciences in their branches, to increase the knowledge, skill, standard and proficiency of its members in the practice of optometry, and to maintain the honour and integrity of the optometric profession;

(b) to support and advance measures designed to improve vision and prevent visual impairment and disability;

(c) to co-operate with and to help public and private optometric associations, agencies and commissions engaged in the task of providing or financing optometric care;

(d) to promote measures designed to improve standards of eye care and the practice of optometry; and

(e) to improve the welfare and social standards of its members and encourage the co-operation of its members in the protection of their legal and equitable rights.

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Powers of association

7. The association may

(a) acquire assets and property both real and personal by purchase, lease, grant, hire, exchange or otherwise and dispose of that property;

(b) provide for the management of its property and effects and of its affairs and business;

(c) borrow money for the purpose of carrying out the objects of the association and give security for money borrowed on its real or personal property by mortgage, pledge, charge or otherwise;

(d) invest money of the association, not immediately required for its objects, in a manner that it may determine;

(e) establish local and regional branches;

(f) fix and collect the annual fees payable to it by its members;

(g) enter into agreements on behalf of the association with a person, association, agent or commission, including agencies of government, that may be necessary for or incidental or conducive to the carrying out the objects of the association;

(h) publish or promote the publication of journals, newsletters, transactions, reports, brochures or other papers to advance the objects of the association;

(i) act as agent within the province for the Canadian Association of Optometrists, or another association recognized as representing optometry practitioners in Canada, and in particular, collect and remit the fees levied by an association;

(j) receive gifts, donations and bequests from persons, associations or corporate bodies, and make gifts or donations for the promotion of the objects of the association;

(k) act on behalf of its members, or a group or section or division of its members, and negotiate for, or on their behalf, with other persons or agencies, including government agencies; and

(l) do other matters and things, including the employment of staff and other persons, that may be necessary or desirable for exercising the powers conferred by this Act or an incidental power.

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By-laws

8. (1) Subject to the approval of the minister, the association may make by-laws consistent with this Act that are necessary or desirable for the proper implementation of its powers.

(2) A by-law, or amendment or revocation of a by-law, may be made at a general meeting of the association where

(a) written notice of that by-law, amendment or revocation, is given to voting members of the association at least 1 month before the general meeting at which the by-law, or amendment or revocation of it is to be made; and

(b) 2/3 of the voting members of the association vote in person or by proxy in favour of the by-law, amendment or revocation.

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Membership

9. (1) Persons who

(a) are holders of a licence; and

(b) pay the fee for membership fixed in accordance with section 7,

are, notwithstanding anything contained in the by-laws, members of the association and have full voting rights in it.

(2) The association may, where the by-laws so provide, but subject to those conditions, terms and limitations, including conditions respecting voting rights that may be prescribed in the by-laws, appoint persons as associate members, student members, life members and to other types of membership in the association.

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Meetings

10. The association shall, in the manner and at the time provided in the by-laws, hold an annual general meeting in each year and may hold those other general meetings that are required during each year.

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Council

11. (1) There shall be a council of the association elected in the manner set out in the by-laws from among the members of the association in good standing, and consisting of the number of persons that the by-laws prescribe.

(2) The council of the association shall carry on and implement the general management of the affairs and business of the association in accordance with this Act and the by-laws.

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Optometric board

12. (1) The Newfoundland Optometric Board is continued as a corporation, having as its members

(a) 4 practitioners elected and nominated by the association and appointed by the minister; and

(b) 2 persons appointed by the minister, 1 of whom may be a medical practitioner.

(2) A member of the board holds office, subject to good behaviour, for a term of 3 years or until his or her successor is appointed.

(3) A member of the board is eligible for reappointment but a member shall not serve on the board for a continuous period exceeding 9 years.

(4) A person named to fill a vacancy in the board shall be appointed in the same manner as the person he or she is replacing and serve only for the remainder of the term of office of the member being replaced, but is eligible for reappointment.

(5) The board shall be responsible to the minister.

(6) The members of the board shall serve without remuneration, but may be paid the travelling and other expenses that may be prescribed by the regulations.

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Appointments published

13. Notice of the appointment of members of the board shall be published in the Gazette, but the failure to do so does not affect the validity of an appointment.

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Chairperson and registrar

14. (1) The board shall meet and elect from among its membership a person to act as chairperson and a person, who is registered and licensed to practise optometry within the province, as the registrar, and the chairperson so elected shall, immediately after the meeting, notify the minister in writing of the results of the election.

(2) Where the board fails to elect a registrar and chairperson at the meeting referred to in subsection (1), the minister shall designate a member of the board to be chairperson and another to be registrar.

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Seal

15. (1) The seal of the board consists of the Coat of Arms of the province referred to in the Coat of Arms Act, circumscribed by the words "Newfoundland Optometric Board".

(2) The registrar shall be the keeper of the seal of the board.

(3) Licences and other documents issued by the board shall be authenticated by the seal of the board and signed by the chairperson of the board and the registrar.

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Quorum

16. Four members of the board constitute a quorum for a meeting of the board.

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Examination

17. Unless there are no applicants for registration, examination of applicants for registration shall, subject to the regulations, be held by the board at least once annually at the place that the board may designate.

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Registration

18. Applications for registration shall be directed to the registrar, and referred by the registrar to the board, and the board may, subject to the regulations, direct that registration be granted immediately or that the applicant undergo examination before the board or a member of the board who may be designated by the board to conduct the examination.

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Results of examination

19. At the conclusion of an examination the registrar shall immediately notify the applicant of the result of the application and of the board's decision on the application.

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Meetings

20. The board shall make those rules that it considers necessary for the calling of its meetings and the order and conduct of business at those meetings, but, in the absence of those rules, meetings shall be called by the chairperson of the board by notice given by letter, telegram or telephone, at least 48 hours before the time set for the holding of the meeting.

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Duties of board

21. The board shall, subject to the regulations,

(a) examine degrees, diplomas, licences and other credentials of an applicant for registration for the purpose of determining if the applicant should be registered and licensed in accordance with this Act;

(b) prescribe and conduct examinations to ascertain the qualifications of persons to be registered and licensed in accordance with this Act and the regulations; and

(c) approve the issuing of, and issue licences to persons who meet the requirements of this Act and the regulations.

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Duties of registrar

22. The registrar is the secretary of the board and shall

(a) keep a record of the proceedings of the board;

(b) maintain a register which shall be called "The Newfoundland Optometric Register" in which shall be entered the names of those persons qualified and licensed to practise optometry in the province;

(c) subject to the payment of applicable fees under this Act, where the board has approved the registration and licensing of a person, enter the name of that person in the register and, in accordance with section 27, issue to that person a licence to practise; and

(d) before March 1 in each year publish in the Gazette, and a newspaper generally circulated throughout the province, the names, in alphabetical order with their respective addresses, of persons who are holders of licences to practise optometry in the province and whose names appear on the register as of January 1 immediately preceding that publication.

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Inspection of register

23. The register shall, without charge, be open and subject to inspection at reasonable times.

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Interpretation of terms

24. The words "legally qualified optometrist" or "duly qualified optometrist" or other words importing a person recognized by law as a practitioner of optometry, where used in an Act or legal public document, shall be construed to mean a person who holds a valid and existing licence under this Act.

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Licence

25. (1) The board shall issue a licence to a person who pays the prescribed registration and licence fee who

(a) holds the academic qualifications prescribed by the regulations or has passed the examination that may be prescribed by the regulations;

(b) has a working knowledge of the English language to a degree sufficient to enable the person to practise optometry in the province; and

(c) produces evidence of satisfactory character acceptable to the board.

(2) The board may issue temporary licences without examination for periods not in excess of 1 year, for the purpose of providing the services of optometrists to sparsely populated areas of the province, to a person who pays the prescribed registration and licence fees, subject to the terms and conditions as set out in the regulations and prescribed by the board.

(3) It is a condition of the issuing of a licence under this section that the person to whom the licence is issued shall, within 1 month of the date of the issuing, become a member of the association, and the failure of that person to comply with this condition makes the licence void from that date.

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Regulations

26. Subject to the approval of the minister, the board may make regulations

(a) providing for the holding and procedure of its meetings;

(b) prescribing the qualifications for the registration and licensing of persons to practise optometry in the province;

(c) providing for examinations as to the qualifications of persons to be registered and licensed under this Act and prescribing the content and conduct of those examinations;

(d) providing for persons to discharge the duties of checking the visual acuity of a person;

(e) exempting a person from an examination that the regulations may prescribe where that person meets those qualifications that may be prescribed by the regulations;

(f) providing for and prescribing the amount of fees payable for examination, registration and licences under this Act;

(g) respecting the discipline of practitioners;

(h) respecting the remission of fees or a portion of fees and the conditions of that remission;

(i) for the defining of "professional misconduct";

(j) respecting conflict of interest;

(k) for the effective exercise of its powers, functions and duties, the management of its affairs and the conduct of its business;

(l) that it considers necessary for, or incidental or conducive to, the proper and better guidance, government, discipline and regulation of the profession of optometry in the province;

(m) prescribing forms for use under this Act, including forms for the application for registration and licensing under this Act;

(n) fixing the amount of expenses for the purposes of subsection 12(6);

(o) providing for the itemization of accounts rendered for the provision of services;

(p) providing for the holding of inquiries into the operation of this Act and into a charge or complaint that a person has contravened this Act or the regulations, or into a matter arising in the administration of this Act, and providing the person holding an inquiry with the powers that are or may be conferred upon a commissioner under the Public Inquiries Act, including the power to take evidence under oath or affirmation;

(q) providing for the maintenance of the register, and the form and contents of the register;

(r) providing for the maximum amount of a penalty to be imposed under paragraph 33(1)(c);

(s) providing for the terms and conditions to be attached to the issuing of a temporary licence to practise optometry;

(t) respecting the qualifications of practitioners who may use topical anesthetics under section 43; and

(u) generally, to give effect to the purpose of this Act.

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Issuing of licences

27. The board shall, upon receipt of payment of the fees prescribed by the regulations, issue a licence to practise optometry in the province to a person at the time when he or she is registered by the board under this Act.

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Annual renewals

28. A person whose registration under this Act is existing shall annually, before January 1, take out from the board, upon payment of the fees prescribed by the regulations, a licence to practise optometry in the province for the year then beginning, and the board shall, where that person is entitled to receive that licence, issue it upon the payment of the fees prescribed.

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Expiry of licence

29. A licence under this Act shall, unless registration by the board is sooner cancelled or suspended, expire at midnight on December 31 of the calendar year for which it is issued.

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Amount of fees

30. In prescribing the amount of fees under paragraph 26(f) the board shall ensure that the level of those fees is sufficient to provide it with the income necessary to discharge its functions and duties under this Act.

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Use of fees

31. (1) Money received by the board shall be applied by the board in the discharge of its functions and duties under this Act.

(2) The board shall appoint qualified auditors who shall annually audit the affairs of the board and immediately upon receipt of the audited report the chairperson of the board, or failing him or her, the registrar, shall deliver a copy of the auditors' report to the minister.

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Recovery of fees

32. The board may recover fees or other amounts due the board by a person as a private debt in a court.

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Disciplinary action

33. (1) Where the board is of the opinion or has reasonable cause to believe that a practitioner has committed professional misconduct or malpractice, or may be guilty of conduct unbecoming a practitioner, or may, by the continuation in the practice of optometry, constitute a danger to the public or a person, it may, after full inquiry,

(a) remove the name of the practitioner from the register;

(b) suspend the licence of the practitioner for the period that the board may prescribe;

(c) impose upon the practitioner a monetary penalty not to exceed the sum fixed by the regulations; or

(d) impose conditions or limitations on the practitioner in carrying out the practice of optometry.

(2) For the purpose of the inquiry, the board and members of the board are vested with the powers that are or may be conferred on a commissioner under the Public Inquiries Act.

(3) The practitioner has the right to be heard and to be represented by a barrister, solicitor or other person at the inquiry.

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Appeal

34. (1) A practitioner aggrieved by a decision of the board under section 33 or section 25 may appeal to a judge of the Trial Division within 30 days after the decision of the board by filing in the office of the Registrar of the Supreme Court a notice of appeal and serving a copy of the notice on the board.

(2) Notwithstanding a rule or practice to the contrary, the notice of appeal shall

(a) set out in detail the allegations of the appellant and the grounds upon which the suspension or cancellation is appealed against; and

(b) be signed by the appellant or the appellant's solicitor.

(3) The appellant shall within 14 days after service of the notice of appeal under this section, apply to the judge for the appointment of a day for the hearing of the appeal and shall, not less than 14 days before the hearing, serve upon the board a written notice of the day appointed for the hearing.

(4) The judge shall hear the appeal and the evidence brought forward by the appellant and the board, and shall decide the matter of the appeal by

(a) upholding or revoking the action of the board; or

(b) making a decision or order that the judge considers to be appropriate in the interest of justice and equity, including an order as to costs for or against the appellant or the board and the amount of the costs.

(5) An appeal may be taken from the decision of the judge to the Court of Appeal upon a point of law raised at the hearing of the appeal.

(6) The board shall cause the registrar to implement the decision of the judge of the Trial Division or the Court of Appeal and shall comply with the terms of an order made by the court.

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Evidence of registration

35. (1) Where registration is in issue, the production of a copy of the register, certified by the registrar, is sufficient evidence of persons who are registered in the absence of the production of the original, and a certificate upon that copy of the register purporting to be signed by a person as registrar is, in the absence of evidence to the contrary, proof that that person is the registrar.

(2) The absence of the name of a person from the register or a copy of it certified according to subsection (1) is, in the absence of evidence to the contrary, proof that that person is not registered.

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Inspection

36. (1) The board shall appoint representatives to inspect places where optometry is practised in the province.

(2) The representatives may enter, without notice, places where optometry is practised at reasonable times to make necessary inspections.

(3) The representatives shall report to the board and the practitioner concerned the results of their inspection together with their recommendations for the remedying of unethical, insanitary, illegal or improper conduct, condition, practice or procedure that is found.

(4) A recommendation of the representatives that is not promptly and adequately adopted and carried into effect by the practitioner concerned shall be reported by the representatives to the board who then shall make a formal demand on that practitioner to adopt and carry that recommendation into effect.

(5) Failure on the part of a practitioner to comply promptly and completely with a written demand of the board constitutes professional misconduct on the part of the practitioner.

(6) A practitioner who is aggrieved by a report or recommendation of the representatives or demand of the board made under this section may appeal it to a judge of the Trial Division, and section 35 applies to the appeal, with the necessary changes.

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Use of certain titles

37. (1) A person, other than a person holding a valid and existing licence under this Act, shall not use the title "Optometrist" or a word, abbreviation, or letters or signs having similar significance to that title.

(2) A practitioner who holds the academic degree of Doctor of Optometry granted by a university recognized by the minister may display or make use of the title "Doctor" or the abbreviation "Dr."; where that title or abbreviation is followed by the word "Optometrist".

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Fees

38. (1) A practitioner may demand, receive, and sue for in a court reasonable fees for professional services rendered and the cost of materials or appliances supplied.

(2) Other than provided for in subsection (1), a person shall not recover in a court of law fees or money for professional services performed or for materials or appliances supplied in the practice of optometry in the province.

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Action for negligence

39. An action shall not be brought against a practitioner for negligence or malpractice because of professional services rendered by that practitioner unless the action is started within 2 years from the date the professional services terminated.

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General exemptions

40. Nothing in this Act prevents the sale of protective glasses for industrial purposes, coloured glasses that are not ophthalmic appliances or goggles or magnifying glasses not sold or designed for the relief, prevention or correction of visual or ocular anomalies of the eyes.

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Use of trade name

41. (1) A practitioner shall not use a trade name or corporate name in connection with the practice of optometry.

(2) Subsection (1) does not prevent a practitioner from practising optometry in a partnership with 1 or more practitioners under a firm name that includes the surname of 1 or more of the practitioners.

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Referral

42. A practitioner shall refer to a medical practitioner registered under the laws of the province a person consulting the practitioner where the practitioner has detected or should have reasonably suspected a condition that requires a medical opinion or medical or surgical treatment.

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Diagnostic drugs

43. (1) A practitioner shall not use drugs during the course of the practice of optometry except dyes applied topically for diagnostic purposes, and topical anesthetics as set out in subsection (2).

(2) A practitioner may use the following topical anesthetics during the course of the practice of optometry for the purpose of measuring a patient's intra-ocular pressure:

(a) benoxinate hydrochloride, not to exceed 0.4%; or

(b) proparacaine hydrochloride, not to exceed 0.5%.

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Offences and penalties

44. A person who

(a) is not registered in accordance with this Act, and who, by himself or herself or by another person practises optometry or holds himself or herself out as qualified or entitled to so practise;

(b) knowingly helps another in the contravention of this Act;

(c) permits or allows a person in his or her employ other than a registered optometrist to practise optometry;

(d) obtains or attempts to obtain for himself or herself registration in accordance with this Act by making a false or fraudulent representation or declaration, either oral or in writing; or

(e) contravenes this Act or the regulations,

is guilty of an offence and liable on summary conviction to a fine not exceeding $1,000 and in default of payment to imprisonment for a term not exceeding 3 months or to both a fine and imprisonment.

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Proof

45. The use by a person of test lenses, trial frames or other appliances for measuring the human eye or testing the vision of the human eye is, in the absence of evidence to the contrary, proof that the person is practising optometry.

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