THUNDER BAY — "I got a $55,000 bill for asking what I could do with my business," says Kim Darosa.
That's how much Darosa's North Shore Laser Clinic is out of pocket after going to court to effectively nullify a shutdown order last spring from the Thunder Bay District Health Unit.
Darosa, a registered nurse, said the College of Nurses of Ontario announced on March 19, 2021 that cosmetic injecting is not considered a personal care service.
She understood that this enabled clinics such as hers to reopen at that time during provincial COVID-19 restrictions, so long as they "reflected on their practice to keep their patients safe and prevent harm."
Darosa resumed providing services, she said, in the belief that she was adhering to her own College's protocol.
However, less than a week later, the TBDHU served the clinic with a closure order that stayed in effect for three and a half months.
Darosa said that in light of the conflicting information she had received, she tried unsuccessfully to reach the health unit several times to find out if any specific services could still be provided.
The clinic had already been shut down by COVID-19 restrictions for a total of more than five months at various times since the onset of the pandemic
Darosa decided to seek relief from a judge.
She applied to Superior Court for an order that the Reopening Ontario Act permits regulated health professionals, such as RNs, to open to the general public to provide services they are allowed to provide by law.
The application also sought a declaration that her business was a clinic under provisions of the ROA, and that it was able to provide medical cosmetic care and treatments as such.
Darosa argued that her clinic operates under the general oversight of a medical director who is a licensed surgeon.
She disputed that she offers personal services to the public, but identified "medical cosmetic care and treatment services" such as:
- subdermal skin and tissue remodeling
- treatment of vascular and pigmented skin lesions
- non-surgical skin revitalization and resurfacing
- non-surgical fat reduction and body contouring
- laser treatment of benign lesions, acne scars, wrinkles, and tattoo removal
- treatment of fat tissue and cellulite
- laser hair removal
- non-invasive skin tightening
- Botox injections
- dermal filler injections
Darosa also maintained that because she and her medical director are members of regulated health professions, they are deemed essential.
Court ruled that the clinic provided services aesthetic in nature
The judge who heard the case, however, concluded that the North Shore Laser Clinic delivers personal care services related to the body "which are aesthetic in nature and cosmetic in purpose," as contemplated by the provincial shutdown regulations.
Justice Helen Pierce noted that, prior to issuing its order to the clinic, the TBDHU concluded that its services were similar to those offered by other personal care establishments, and directed NSLC and four other similar businesses to close because these services were not permitted under Grey Zone regulations.
"This instruction clarified that regulated health professionals may provide treatment for diagnosed medical conditions but cannot provide personal care services for cosmetic/aesthetic purposes," the judge said.
The court observed that "it would defeat the purpose of containing infection, the harm sought to be prevented, to have a regulated health professional deliver a prohibited service and be exempt from closure."
In addition, it rejected Darosa's argument that the College of Nurses had directed that nurses are in the best position to determine what nursing services can be provided during the pandemic.
"Advice from the College does not supplant the emergency regulatory scheme promulgated by the Reopening Ontario Act which provides specific direction to the health units charged with enforcing the scheme," Judge Pierce said in her ruling .
The court not only dismissed North Shore Laser Clinic's application in its decision in late May, but this month it ordered the business to pay court costs of $35,000 to the Attorney General and $20,000 to the TBDHU.
"I've already lost nine months of work. Now I have this that I have to pay," Darosa told TBNewswatch in an interview.
She said she only went to court to get clarification of the law in light of the discrepancy between what was permitted by the College of Nurses and what was allowed by the TBDHU.
Darosa also contends that "other clinics, similar to NSLC and providing similar services, remained operational in other districts of Ontario, even in areas that were deemed 'hotspots' at the time."
In a prepared statement, she noted "never once did I knowingly defy any ordinance. As a small business owner I did my due diligence and sought to clarify confusion."
Darosa said this was a novel case that needed to be looked into, but she feels her business has been made a scapegoat.
"On August 29. 2021 it was announced publicly that the TBDHU had dropped all fines to three local hairdressers that opened their businesses despite being told to close," she said.
"Instead of breaking protocol, I sought clarification first from the TBDHU and then from the courts...Curiously, costs have been sought from my business."
Darosa said the expense poses a threat and further financial burden to the business she has struggled to keep afloat during the pandemic.
"I'm still standing here saying I'm not sure what I did wrong. I would hate to have actually done something wrong. I can't even imagine the outcome of that."
She's sent a letter to local politicians and the health unit board expressing concern about how the situation was handled.
The North Shore Laser Clinic reopened its doors at the end of June, when the province allowed personal care services to resume.
