** Plaintiff (Cooper) invested money with a mortgage company
** The company was governed by the Mortgage Brokers Act, R.S.B.C. 1996 c.313 (MBA)
** The MBA allowed the defentant to investigate complaints, freeze funds and suspend the licences of brokers found to be in breach of statutory obligations
** Defendent suspended company’s licence
** Plaintiff sued defendant for negligence, claiming that if the defendant had act earlier, the plaintiff would not have suffered the same amount of loss
** Lower court applied a two part test to find that a duty of care existed and that there were no factors to limit that duty: 1. Found it was reasonably foreseeable that the defendants carelessness would result in the plaintiff’s loss; therefore a prima facie duty of care existed; 2. Did not find any factors that would limit that duty.
** BC Court of Appeal: Plaintiff’s loss may or may not have been foreseeable (not the important part); there was not sufficient relationship of proximity between the parties to support a prima facie duty of care; even if there was a prima facie duty of care, various policy considerations worked against the possibility of liability.
** Plaintiff appealed to the SCC
If the plaintiff’s loss is reasionably foreseeable, does that result in a prima facie duty of care? Does a person in charge of enforcing statutory obligations have a legal duty of care to those who suffer injury or loss due to breaches of the statutory obligations?
** Should the law of negligence be extended to reach this situation? How far should principles of liability for negligence extend?
Test application: Is it correct to use the two-part test of determining prima facie duty of care, and then determining whether factors were present that limited that duty? Or is it correct to use the two-part test that also considers policy considerations as mitigating factors?
A government actor who may reasonably foresee that losses to individuals could result if careless in carrying out her or his duties under legislation, does not have a prima facie duty of care to those individuals if the duty is not specified in the legislation.
This case also clarifies the Anns Test.
** Is the first branch of the Anns case concerned with foreseeability only, or foreseeability and proximity? Different types of policy considerations are involved at each state.
** Anns provides a useful framework for deciding whether a duty of care should be imposed on a new situation. To find a prima facie duty of care at the first stage of the test there must be reasonable foreseeability of the part plus something more
Clarification of Anns test:
** 1. First stage: foreseeability and proximity (this is broadly about policy): A. Was the harm that occurred the reasonably foreseeable consequence of the defendant’s act? B. Are there reasons, notwithstanding the proximity between the parties established in the first part of this test, that tort liability should not be recognized here?
*** Clarification: In this stage, reasonable foreseeability of harm must be supplemented by proximity (where proximity is contextual). It is about the relationship between the parties.
It is important to compare to jurisprudence to see if it already applies.
** 2. Second stage: residual policy considerations: Are there residual policy considerations outside the relationship of the parties that may negative the imposition of a duty of care.
*** Clarification: This stage is not concerned with the relationship between the parties, but with the effect of recognizing a duty of care on other legal obligations, the legal system and society. It involves the distinctioni between governemnt policy and execution of policy (Government is not liable in negligence for policy decisions, only operational decisions; the courts cannot second-guess legislators on policy matters).
Application of the Test
** Is this case analogous to previous cases where duty of care was recognized? No.
** Is this a situation where a new duty of care should be recognized?
*** Foreseeability: Plaintiffs may be able to show this
*** Proximity: Factor arises from the statute under which Hobart was appointed. The statute is the only source of duties, private or public. The statute does not impose a duty of care on Hobart (the Registrar) to investors with mortgage brokers regulated by the Act. The duty is to the public as a whole.
Therefore, even though the Registrar (Hobart) might reasonably have foreseen that losses to investors would result if he was careless in carrying out his duties under the Act, there was insufficient proximity between the Registrar and the investors to ground a prima facie duty of care. The statute cannot be construed to impose a duty of care on the Registrar specific to investments with mortgage brokers, as this duty would come at the expense of other important interests (public, efficiency, etc)
Appeal dismissed in favour of the Hobart.