(1) If the answer to ( v) is yes, can such damages be
determined on a class wide basis in respect of the Class
and/or one or more of the subclasses?
(2) If the answer to ( v)(1) is yes, how should the damages
to be payable by the Auditor be calculated?
( vi) Does Ontario law recognize a tort of knowing assistance of
breach of contract and, if so, what are the elements of that tort?
(1) If the answer to ( vi) is yes, have the elements of that
tort been met by all of the Class and/or all of one or
more of the subclasses?
 In 2016, the Class moved for summary judgment on the
first five of the six common issues. The motion judge granted
summary judgment in favour of the Class on the certified common issues relevant to liability.
C. The Summary Judgment Decision
 The motion judge noted that there was no real dispute
over the first two issues: Buckingham was required to segregate
and hold in trust the cash and securities of the Class members on
a client-by-client basis at all times, and it failed to do so.
 The motion judge identified the third issue — the question
of whether the Auditor owed the Class a duty of care — as “the
core question” at issue on the motion: at para. 11. This issue is
also the crux of this appeal.
 The motion judge began his duty of care analysis by noting
the Class’s claim was properly characterized as one for negligence
simpliciter, not negligent misrepresentation. He acknowledged
[at para. 16] that this was “obviously not a conventional negligence case”, but, relying, inter alia, on this court’s authority in
Lipson v. Cassels Brock & Blackwell LLP (2013), 114 O.R. (3d)
481,  O.J. No. 1195, 2013 ONCA 165, he noted that on cer-
tain facts it is possible for a plaintiff in a negligent misstatement
case to proceed against a defendant on the basis of a simple
negligence claim: at para. 16. He explained, at para. 15, why the
claim was properly one for negligence simpliciter:
Here as well, the plaintiff’s negligence claim is based on the allegation that
class members sustained losses which, but for the defendant’s false audit of
the Form 9s, would not have been sustained. If the defendant had filed
accurate Form 9s documenting the regulatory breaches (or had not filed at
all) the OSC, on the evidence, would in all likelihood have intervened before
all the assets and monies were lost. In short, I am satisfied that on these facts
and in principle that the negligence claim is appropriate.