On July 27, 2026, Deputy Judge Mirilyn Sharp of the Small Claims Court released reasons for judgment in Micallef v Distasio, 2026 CanLII 87468 (ON SCSM), awarding a self-represented plaintiff $50,000 in general damages, plus $8,541.66 in prejudgment interest, for burns, scarring, and pigmentation loss caused by a full body laser hair removal treatment performed by an esthetician.
The award is the full monetary limit of the Small Claims Court. The plaintiff got there without an expert report on the standard of care, and she got there because of a decision released seventeen years earlier. The authority both parties relied on, and the authority the Court followed, was Ayana v Skin Klinic, 2009 CanLII 42042 (ON SC), in which I acted for the plaintiff and her family.
What happened
In February 2023, the plaintiff was 48, recently divorced, and decided to undergo a full body laser hair removal procedure. She chose the defendant clinic partly because its website represented experience treating darker skin tones, and partly because the business ran an affiliated school where cosmetic procedures were taught.
She was given a form titled “Confidential Medical Profile” and asked to circle any medical issues. She circled “keloid or scars” and “darkening of the skin.” That form was the only document she signed.
During the treatment she told the esthetician that she was in pain and that her legs were burning. The esthetician paused, looked, asked whether the pain was intensifying, was told that it was, and completed the treatment. The whole procedure took between 45 minutes and an hour. The plaintiff paid $250, went home, and stood in the shower crying as the water hit the burns. She could not sleep properly for more than a week.
Her family physician saw her on February 20, 2023 and recorded burning, whitish scarring, and small patches of darkened discolouration on both legs, the backs of both forearms, both thighs, and the mons pubis. A dermatologist who examined her in October 2024 diagnosed post-inflammatory hypopigmentation triggered by post-laser hair removal burns, and opined that the condition tends to resolve on its own but may take months to years, more slowly in patients with darker skin types. At trial in July 2026, three and a half years after the treatment, the hypopigmentation and scarring had not resolved.
The question that decided the case: malpractice or ordinary negligence
The defence position was straightforward and, in a medical negligence action, would usually have been strong: the plaintiff bore the onus of proving a breach of the standard of care, she had filed no expert report, and she therefore could not discharge that onus.
That argument only works if the applicable standard is the medical one. Whether it was turned on how laser hair removal is characterized under the Ontario regulatory framework, and that is the question Ayana answered. In Ayana, Justice Price held that on the Ontario framework then in place, laser hair removal performed by a technician was not a medical procedure, even when performed in a dermatologist’s office. Laser light applied for cosmetic hair reduction is not among the forms of energy prescribed under the controlled acts provisions of the Regulated Health Professions Act, 1991. If the procedure is medical, the plaintiff must lead expert medical evidence establishing the standard of care of a supervising physician. If it is not, the standard is that of a reasonably competent laser hair removal technician, proven in the ordinary way.
Deputy Judge Sharp adopted that framework and reached the same conclusion. She noted that she had not been provided with any evidence that the regulatory position was different in February 2023 than it had been when Ayana was decided.
Two observations about that. First, on my reading the position has not materially changed in the respect that mattered, though this is an area under active regulatory attention and the characterization question should not be treated as permanently settled. Second, and more practically, the defence led no evidence on the point at all. A defendant who wanted to reopen the characterization question would need to build a record, and no such record was built here.
Why no expert report was required
The doctrinal hinge is Ter Neuzen v Korn, 1995 CanLII 72 (SCC), [1995] 3 SCR 674, which the Court quoted. Courts should not resolve scientific disputes requiring professional expertise. But matters “falling within the ordinary common sense of juries” can be found negligent without expert assistance, and where obvious alternatives exist that any reasonable person would adopt to avoid a risk, failing to adopt them can be negligent even if it is the prevailing practice in the field.
Deputy Judge Sharp held that a technician’s failure to stop a laser treatment after a client repeatedly reports pain and burning falls within that category. It does not require an expert to say so.
This is the same conclusion, reached on the same authority, as in Drain v Ziesmann, where negligence was found without expert evidence. It is worth being precise about the scope of the principle, because it is narrow. Ter Neuzen does not dispense with expert evidence in claims against physicians and hospitals. It carves out the small class of case where the impugned conduct is comprehensible without technical instruction. In the overwhelming majority of medical negligence actions, expert evidence remains the entire ballgame, and claims fail without it. Micallef is not a softening of that requirement. It is a case that sat outside it from the start.
Note also what the plaintiff did have. She had no standard of care expert, but she had two medical reports going to injury and causation. That distinction is easy to blur and worth keeping clear.
The breaches
The Court found four:
Continuing after complaints of pain. The Court preferred the plaintiff’s evidence and found as a fact that she reported pain and burning during the treatment and that the esthetician carried on regardless. This finding alone was held sufficient.
No patch testing. Patch testing in advance, with a sufficient interval to permit observation of the skin’s response, should have been undertaken. This is the same operational failure identified in Ayana.
Failing to consider the medical profile. The Court found that the esthetician did not review the Confidential Medical Profile before starting, and did not discuss with the plaintiff what the circled entries for keloids, scarring, and skin darkening meant for her risk.
Failing to provide a consent form or explain the risks. This one repays attention. A blank consent form had been annexed to the Defence. A signed consent form was served on the plaintiff at 8 pm on July 2, 2026, six days before trial. After the lunch break on the first trial day, defence counsel confirmed the Defendants would not rely on it. The Court therefore found as a fact that no consent form was ever given to or signed by the plaintiff, and then found a separate breach in that failure. A document produced on the eve of trial and then abandoned did not become neutral. It became the foundation of an adverse finding.
Credibility, and the records that did not exist
The reasons are, in substance, a credibility judgment, and they read as a case study in how oral evidence of routine practice collapses without documents to anchor it.
The esthetician testified that she had treated between 5,000 and 7,000 clients over four years and that none had ever complained of pain during a laser treatment. Cross-examination established that as of February 2023 she had been performing laser treatments for one year and had treated only 100 to 150 clients with darker skin tones. She described February 10, 2023 largely in terms of what she usually does rather than what she did. Her account of the sequence of events initially omitted any skin assessment, any review of the medical profile, and any patch testing, and she added those steps only after being asked about them directly. On when she supposedly discussed the keloids and scarring, she first said during the procedure, then, on the Court’s second question, said before it. The Court’s assessment was blunt: “I did not find Ms. Distasio’s evidence on this issue to be credible.”
Two further points sealed it. She produced no notes or records of the treatment. And she testified both that no client had ever reported pain and that she herself had been burned by a laser and knew the pain is felt immediately. Asked in cross-examination how the plaintiff could have failed to report pain when the photographs sent shortly afterward showed she had plainly been burned, the question drew a vehement objection, was ruled proper, and was never answered.
This is precisely the point for which Ayana is cited in industry guidance to medi-spas and personal service businesses: contemporaneous records will be preferred over later oral evidence of standard practice when the two conflict. Seventeen years on, the same evidentiary gap produced the same result. The importance of contemporaneous records is not a plaintiff’s talking point. It is what defends a claim.
Causation was not seriously in issue. The photographs, the text messages sent shortly after the procedure, and the two medical reports established that the injuries arose from the February 10, 2023 treatment, and the Defendants called no evidence of any alternative cause.
The monetary jurisdiction amendment
The claim was issued in January 2024 for $35,000, then the Small Claims Court limit. By trial the limit was $50,000. After the evidence and the quantum submissions were in, the Court raised on its own initiative the prospect of allowing the self-represented plaintiff to amend to the current limit, and invited submissions.
The defence opposed, listing what it would have done differently: amended the Defence, retained experts, cross-examined further, made additional submissions, revisited its position on offers to settle. Applying Commisso v 1132165 Ontario Ltd., Fast Money ATM Inc. v Inkas Security Services Ltd., Pendrith v Sefidi, and M.Y.A. General Contracting Inc. v Cavé City Developers Corp., the Court held that the onus rests on the party opposing the amendment to show prejudice on a balance of probabilities, and that it is not enough to make “vague suggestions of what might or might not have been done.”
The Court then tested each asserted prejudice against the trial record, and each one failed. The 11 paragraph Defence said nothing about damages, so there was nothing to amend. The defence had explained at the outset that it retained no expert because the onus lay on the plaintiff and the case was not worth the cost of a report, a position maintained after the plaintiff closed her case, and one the Court found would not have changed at $50,000. Counsel had asked the plaintiff five questions in cross-examination, four of which went to cover-up and failure to seek treatment. The Court also recorded that it had already extended indulgences to the Defendants, admitting their late document brief and permitting documents to be withdrawn from it mid-trial. The conclusion was that the objection was not really about timing but about the realization that the Court might not accept the $5,000 figure the defence had advanced.
For anyone litigating in Small Claims Court through a jurisdictional increase, the practical lesson is that asserted prejudice will be measured against what counsel actually did at trial.
Damages
The Court did its own quantum research, disclosed the results to the parties by endorsement, and invited submissions. That is careful practice, particularly opposite a self-represented litigant. The comparators, with the Court’s inflation adjustments, ran from $33,700 (Toolsieram v 2235506 Ontario Inc., 2014 ONSC 5951) through Ayana at $49,991.31 and Ramotar v La Fontaine Jeunesse, 2010 ONSC 6454 at $42,444.06, up to $150,136.99 (Webb v Weiglein).
The defence offered no quantum authority when asked at trial, and in written submissions relied on a spilled coffee case to argue for $5,000. The plaintiff, self-represented, submitted $35,000 or as the Court deemed just, and distinguished Ayana on the basis that while the Ayana plaintiff’s burns were on highly visible areas, her own injuries were spread across numerous parts of her body including private and personally sensitive locations.
The Court awarded $50,000, more than the plaintiff had asked for and exactly the amended limit. The reasons do not indicate whether the ceiling constrained the assessment. What they do record is the reasoning: intense pain during and for weeks after the treatment; permanent-appearing hypopigmentation and scarring still visible at three and a half years, in intimate locations; continuing embarrassment and loss of confidence affecting how she dresses and how she views her body; a plan to celebrate her 50th birthday at Caribana abandoned because she could not wear the costume; a procedure undertaken to rebuild her life after divorce that left her uncomfortable in her own body; and shyness and embarrassment on dates.
Prejudgment interest was awarded at 5% per annum from the date of treatment. That is the rate that applies to non-pecuniary damages in personal injury actions under s. 128(2) of the Courts of Justice Act, and the Court of Appeal confirmed in Aubin v Synagogue and Jewish Community Centre of Ottawa, 2024 ONCA 615 and Henry v Zaitlen, 2024 ONCA 614, the latter a medical malpractice case, that departure from it requires special circumstances. Costs were deferred for submissions.
What it means
For patients injured in cosmetic and aesthetic procedures, the practical significance is access. Burn and scarring claims against laser clinics, medi-spas, and salons are often too small to fund the expert evidence a medical negligence action requires, which has historically left injured clients with no realistic route to compensation. Where the alleged failure is one an ordinary person can assess, such as continuing to fire a laser at someone who says she is burning, Ter Neuzen and Ayana mean that expert evidence on the standard is not a precondition. With the Small Claims Court limit now at $50,000, a claim of this kind is viable in a forum a self-represented plaintiff can actually use. This plaintiff proved it.
For operators, the compliance list has not changed since 2009 and is not long. Patch test, with a real interval. Take a proper history and act on what it discloses. Provide and explain a consent form before the procedure, not six days before trial. Stop when the client says she is burning. Write everything down at the time.
And for anyone tempted to read this as an erosion of the expert evidence requirement in medical negligence, it is not. It is a Small Claims Court decision, which carries no precedential weight, applying a Superior Court decision and a Supreme Court of Canada decision to a procedure that Ontario has never regulated as medical care. The reason the plaintiff did not need an expert is that she was not suing a doctor. That distinction is the whole case.
If you have been injured during a cosmetic or aesthetic procedure in Ontario, or you are not sure whether what happened to you gives rise to a claim, these are the questions worth asking first.
Decision Date: July 27, 2026 Jurisdiction: Ontario Superior Court of Justice, Small Claims Court (Toronto) Citation: Micallef v Distasio, 2026 CanLII 87468 (ON SCSM) Deputy Judge: Mirilyn Sharp
