On July 29, 2009, Justice D.G. Price of the Ontario Superior Court of Justice released his judgment in Ayana v Skin Klinic, 2009 CanLII 42042 (ON SC). Paul Cahill was counsel for the plaintiff and her family. The decision established liability against a Burlington dermatology clinic for the burns and scarring a patient sustained on her face and neck during a laser hair removal procedure. It is one of the earliest Ontario decisions to address a question that the case-law had not previously settled in this province: when laser hair removal is performed in a dermatologist’s office by technicians rather than the dermatologist herself, is the procedure a “medical procedure” governed by the medical malpractice standard of care, or is it governed by the ordinary law of negligence?
The court held that, on the regulatory framework in place in Ontario at the time, the procedure was not a medical procedure. The standard of care was therefore the ordinary negligence standard. On that standard, the clinic was found liable, and damages were awarded to the plaintiff and to her family under the Family Law Act.
The decision continues to be cited in Canadian legal practice as an authority on the documentation and operational practices that medi-spas, laser clinics, and other personal-service businesses must follow to defend a claim. The Borden Ladner Gervais (BLG) industry guide for the health and wellness sector cites the case for the proposition that contemporaneous electronic records will be preferred over later oral evidence of “standard practice” when the two conflict (read the BLG analysis).
The facts
The plaintiff was a 41-year-old Ethiopian-Canadian woman, married, with two young children. She was a machinist; her husband operated a taxi business in the Burlington area. She had been referred to the clinic by her family physician for treatment of a fungus on her daughter’s foot. While at the clinic for that purpose in 2004, she noticed a brochure advertising laser hair removal and asked the owner of the clinic, a dermatologist, whether the procedure could be used on dark hair. She was told it could.
The plaintiff signed a written consent form and underwent a screening assessment. The form acknowledged that laser hair removal carried a less than 0.1 percent incidence of scarring and a 10 to 20 percent incidence of temporary pigmentation changes. She was classified on a Fitzpatrick-style chart, and three sessions were scheduled.
The first two sessions were performed by an aesthetician employed at the clinic and proceeded without incident.
The third and final session, on January 5, 2005, was performed by a different aesthetician. This technician had not performed the patient’s initial assessment, had not performed her skin classification, and had not administered the earlier two treatments. Before the session, the technician applied a topical anaesthetic to the patient’s skin, which had not been used in the earlier sessions. The technician did not perform a full patch test before beginning treatment.
During the procedure, the plaintiff repeatedly complained of pain. The fluence was reduced, but the procedure was continued. The plaintiff asked to speak to the dermatologist; the dermatologist was not present in the clinic that day.
The plaintiff sustained burns and subsequent hypopigmentation on her face and neck. Within days, she attended at Joseph Brant Memorial Hospital. The injuries healed over the following months but left her with permanently lighter pigmentation on her neck, which she described as visible and shaming. She developed post-traumatic stress disorder, confirmed at trial by the testimony of a psychologist who had assessed her.
The central legal issue
The central legal question was not whether the third session had been performed competently. The court accepted that it had not. The central question, doctrinally, was which standard of care applied.
If laser hair removal performed in a dermatologist’s office was a medical procedure, then the plaintiff would have been required to lead expert medical evidence to establish the standard of care of a physician supervising the procedure, and to prove a breach of that standard. If the procedure was not a medical procedure, then the standard of care was the ordinary negligence standard, established through evidence of what a reasonably competent laser hair removal technician would have done in the circumstances, with expert support from those in the industry.
The defence position was that the procedure was medical care because it was performed in a dermatologist’s office, under the auspices of the dermatologist, and using a Class III medical device regulated under the federal Food and Drugs Act.
The plaintiff’s position was that the procedure was not, under the Ontario regulatory framework, restricted to physicians or their delegates. Laser hair removal is not a controlled act under the Regulated Health Professions Act, 1991. The technicians at the clinic were not nurses, were not regulated health professionals, and were not required to be. The dermatologist herself was not present during the procedure and did not directly supervise it.
Justice Price worked through the legal frameworks in both Ontario and the United States in extensive detail. The Ontario framework was straightforward in its silence: the Regulated Health Professions Act, 1991, the Medicine Act, 1991, and their regulations did not restrict laser hair removal to physicians or designated delegates. Nor did any other Ontario statute or regulation impose that restriction. The American case law, which the court reviewed at length, was divided but instructive. The court ultimately adopted the reasoning of the Indiana Court of Appeals in Ob-Gyn Associates of Northern Indiana, P.C. v Ransbottom, which held that the location of a procedure in a physician’s office did not, by itself, render the procedure medical care.
On that analysis, the court concluded that laser hair removal at the clinic was not a medical procedure, and that ordinary negligence principles applied.
The standard of care and its breach
Having identified ordinary negligence as the applicable framework, the court drew on expert testimony from aestheticians qualified in laser hair removal to set out what a reasonably competent technician would have done in the circumstances.
The court found a breach in three respects.
Patch testing. A different technician was administering the third session than had administered the first two. In those circumstances, the court held, a full patch test was required before treatment, with a sufficient interval to permit observation of the skin’s response. The technician’s evidence that she had performed brief “spot tests” at the start of the third session was not supported by the clinic’s electronic notes, and the patient’s evidence was that there were no breaks in the treatment.
Responding to pain. The court found that the technician failed to discontinue the procedure when the patient repeatedly complained of pain. Some discomfort is expected during laser hair removal. The cooling tip and the patient’s communication of discomfort are how a technician calibrates whether the energy being delivered is within safe parameters. A patient’s repeated complaints of pain, even after the fluence is reduced, do not licence the technician to continue. They dictate stopping, waiting, and reassessing.
Continuity of assessment. The court observed that when the same technician performs the assessment, the classification, and the treatment, that technician can make continuous calibrations during the procedure based on her own observations of how the patient’s skin is responding. When a different technician performs the treatment, that calibration is impaired. The clinic’s failure to ensure full documentation of the earlier sessions and full re-assessment at the third session was a contributing factor in the breach.
The court was careful to note that the breach was not in the use of a different technician per se. It was in the failure to take the additional steps that a different technician administering the treatment made necessary.
Causation
Causation was not seriously contested at trial. The court held that the breach caused the burns and the scarring sustained by the plaintiff, and that those physical injuries in turn caused her psychological injury.
Damages
On general damages, the court applied the Supreme Court of Canada’s then-recent decision in Mustapha v Culligan of Canada Ltd., 2008 SCC 27, which had clarified that the “person of ordinary fortitude” test governs the question of remoteness when psychological injury is alleged. The court held that it was reasonably foreseeable to the clinic that a person of ordinary fortitude would suffer serious physical and psychological injury from a botched laser hair removal procedure on her face and neck. The remoteness threshold was met.
In assessing the quantum of damages, the court was entitled to take the plaintiff’s particular circumstances into account. Among those circumstances was that the plaintiff was a member of the Ethiopian community in Canada, where skin discolouration on the face and neck is associated with leprosy. The court accepted the plaintiff’s evidence and the supporting evidence of her husband that the cultural significance of her facial scarring had a greater impact on her than the same scarring would have had on a person from a different cultural background. The court was satisfied that the plaintiff’s PTSD, her ongoing self-consciousness in public, the strain on her marriage, and the strain on her relationships with her children were all consequences of the clinic’s negligence.
Non-pecuniary general damages were assessed at $35,000. Special damages, including lost income, out-of-pocket medical expenses, future counselling costs, and a refund of the procedure’s cost, brought the plaintiff’s total individual award to approximately $37,800. The plaintiff’s husband recovered $3,500, her son $5,000, and her daughter $500 under the Family Law Act for the loss of care, guidance, and companionship attributable to the injury. The Ontario Health Insurance Plan recovered $225.85 in subrogated medical expenses.
Why this case continues to matter
Ayana sits at an important point in the development of Ontario law on cosmetic and aesthetic procedures.
It established that the location of a procedure does not, by itself, determine whether the procedure is medical. A procedure performed in a doctor’s office is not automatically governed by the medical malpractice standard of care. The question is whether the procedure itself is regulated as medical care under the applicable statutory framework. In Ontario, in 2009 and still today, laser hair removal is not so regulated.
It set out the operational practices that ordinary negligence requires of a non-medical aesthetic clinic. Full patch testing where a different technician will administer treatment than has performed the assessment. Discontinuation of treatment when a patient communicates pain. Comprehensive contemporaneous documentation of the assessment, the classification, and the parameters used at each session. The clinic in Ayana failed all three; subsequent decisions and legal commentary have drawn on the same framework.
It applied Mustapha in a context where the physical injury was relatively modest but the psychological injury was significant. The court’s analysis on remoteness, on the “ordinary fortitude” test, and on the place of subjective and cultural considerations in the assessment of damages remains a useful reference for plaintiffs and defendants alike when a relatively minor physical injury produces serious psychological harm.
It is now cited in industry guidance as an authority on documentation practices. The BLG legal-industry guide for medi-spas, spas, and personal service settings (linked above) cites Ayana for the proposition that contemporaneous electronic records will be preferred over after-the-fact oral evidence of standard practice. That guidance has shaped how the industry approaches its records.
In 2009, when Ayana was decided, the laser hair removal industry in Ontario was in its early growth phase. In the years since, the industry has expanded into medi-spas, salons, and standalone clinics across the province, and the conduct of unregulated operators has been the subject of repeated media investigations and lawsuits, including national coverage by the CBC and by Global News. Ayana remains the foundational Ontario decision establishing that, even where a procedure does not require a doctor, the operator owes a serious duty of care to the patient, and that the consequences of a breach can include not just physical injury but cultural and psychological harm that the court is entitled to compensate.
Decision Date: July 29, 2009
Jurisdiction: Ontario Superior Court of Justice
Citation: Ayana v The Skin Klinic, 2009 CanLII 42042 (ON SC)
Counsel for the plaintiffs: Paul J. Cahill
