Judge shuts down the Lash Lady
Whitney Durelle now prohibited from performing aesthetics services until she’s licensed by the Cosmetology Association of New Brunswick
Despite a lash and brow aesthetician’s plea that she can’t afford provincial licensing requirements, a judge granted a regulatory organization’s request Monday for an injunction barring her from plying her trade.
The Cosmetology Association of New Brunswick, based in Fredericton, filed a notice of application last summer with the Court of King’s Bench, seeking an injunction to stop Whitney Durelle from doing cosmetology work.
Durelle operates Lash Lady Studio and Cosmetics in Richibucto, where she does lash and eyebrow work, lip blushing and other such aesthetic services.
All hairstylists, aestheticians and cosmetologists in New Brunswick are required to be certified and licensed as per the provisions of the Act to Incorporate the Cosmetology Association of New Brunswick, and the association oversees licensing.
Durelle isn’t licensed.
The case was before King’s Bench Justice Terrence Morrison at the Burton Courthouse on Monday morning. Durelle wasn’t present, but lawyer Bryan Tait appeared on her behalf.
Danielle Harding, one of the association’s lawyers, said the association has a dual purpose: promotion of the cosmetology industry in the province, but also the protection of the public by ensuring those offering aesthetic services are qualified to do so safely and properly.
Durelle, in an affidavit filed with the court, admits she’s unlicensed and acknowledged that a licence from the Cosmetology Association is required to practise in New Brunswick.
“The fact is Ms. Durelle has never made an application [to be licensed] to the association,” Harding said.
Durelle also contends that her previous certification from British Columbia should be recognized, because there should be mobility of professions from province to province.
But Harding said that’s not how professional licensing works, offering the practice of law as an example.
“If I were to move to Ontario, I would have to register with the Law Society of Ontario,” she said.
Cost-prohibitive
In her affidavit, Durelle contends the additional requirements to get licensed - including additional training and renovations to her salon space - are cost-prohibitive.
Tait said Durelle’s research led her to believe the additional education and other requirements to be licensed would cost her in the range of $20,000, and she just doesn’t have that kind of cash.
Furthermore, he said, his client estimates it would take her about nine months to comply with what the association wants, and she can’t afford to shut her business down for that long.
When the association originally contacted Durelle about the need to be licensed, she was defiant.
"I never refused to obtain a licence so please stop harassing me and my family," Durelle wrote in previous correspondence with the association.
"This is my only income and I have a right to my livelihood."
Her position since last year has softened. Morrison noted that in her affidavit, she regrets her earlier comments and wants to retract them.
“She didn’t handle it well when the association reached out to her,” Tait said.
Morrison noted the respondent argued she ought to be covered by a grandfathering clause attached to the relevant legislation.
Harding countered that the act in question came into effect in 1998, and the grandfathering clause covered professionals already providing the relevant services under previous regulatory regimes.
Only those who were licensed then are grandfathered, she said, noting Durelle is not covered by it.
Tait said if his client is forced to fulfil the expensive licensing requirements, it could break up her family. He said if the injunction is granted, Durelle might have to move back to British Columbia to earn a living, but her partner has two children from a previous relationship and has to remain in New Brunswick.
‘There is a path forward for Ms. Durelle’
Harding said it’s not even clear if the association’s examination and licensing committee would require all of the training and other conditions Durelle anticipates.
The committee reviews the certifications, training and other bonafides of applicants, she said, and determines on an individual basis if anything else is needed to be licensed.
“It’s discretionary,” Harding said.
Even if Durelle finds the committee’s decision to be too onerous, Harding said, there’s an appeal process, and after that, she would also have an application for a judicial review open to her.
“So there is a path forward for Ms. Durelle,” Morrison said.
The judge said while an injunction is a drastic remedy in any case, his order prohibiting Durelle from doing lash and brown aesthetic work - and from promoting herself as an aesthetician - isn’t a permanent one, noting it would be lifted once she’s licensed.
Requiring aestheticians and cosmetologists to be licensed is in the public interest, he said, as it ensures people’s health and safety.
The expense of complying with licensing requirements isn’t a factor to be considered, Morrison said.
He said Durelle is now restrained from operating a place of business where cosmetology services are offered, and he ordered her to pay $1,000 in costs to the association.
Gaye Cail, executive director of the association, which boasts about 8,000 members, said Monday she was satisfied with the judge’s decision, noting it’s rare the organization has to turn to the courts when someone won’t comply with the licensing regime.
“We’ve only done a couple of injunctions,” she said.
Court heard another reason the order was needed was because Durelle’s defiance led to pushback from others, but Cail said it stemmed from “mostly supporters of hers.”
If Durelle doesn’t comply with the injunction, Cail said, the legislation allows for fines for enforcement purposes.
Defying an order such as an injunction can also lead to a contempt of court charge.
Reached for comment Monday through social media, Durelle confirmed she’s moving back to British Columbia with her two children, leaving her husband and two other kids behind due to the situation.
“[The association] is creating a huge disservice and unwelcoming environment for women within our trades,” she wrote.
Durelle said when she first moved to New Brunswick, she didn’t even know about the association.
“I can legally tattoo someone’s face right now, but I’m legally being restricted from applying some plastic eyelashes on a consenting adult,” she wrote.
“This is ridiculous. It is such an emotionally and mentally straining situation.”
Durelle also made news at the height of the COVID-19 pandemic when she complained on social media about government restrictions that forced salons to close their doors, and she said she’d defy that emergency order.
Don MacPherson can be contacted at ftonindependent@gmail.com.
She can afford to move back to BC but she can't afford to make the necessary changes to be licenced. Interesting, it sounds more like a person that doesn't like rules period. There is not only a monetary cost of moving back to BC but also one from a relationship point of view.
Time for National licensing