evidence that it also breached its duty with respect to the 1998
Form 9 audit.
[21] On the fifth issue, damages, the motion judge held that it
was not possible at that time to determine damages on a Class-wide basis. He noted that the Class had indicated it may bring
a follow-up motion based on a “corrected spreadsheet” prepared
by the receiver to determine the issue of damages at a later time.
[22] On the basis of this analysis, the motion judge answered
the questions, with the exception of the question of damages, in
favour of the Class, and granted summary judgment.
D. Issue
[23] In my view, the central issue on appeal is whether the
Auditor owed the Class a duty of care in relation to its audit of
the Form 9s. For the reasons outlined below, I conclude that it did
not. In light of this conclusion, it is not necessary to consider any
of the other issues raised on appeal; I would allow the appeal and
dismiss the Class’s claim.
E. Analysis
(1) The duty of care analysis after Livent
[24] In the Supreme Court’s recent decision in Livent, the court
applied and refined the Anns/Cooper framework to define the
duty of care owed by an auditor. Its analysis sets the conceptual
table for my determination of whether the Auditor owed the
Class a duty of care in this case. Below, I consider and describe
the Anns/Cooper framework, with particular attention paid to the
Supreme Court’s recent refinements in Livent.
[25] In order to understand the application of Livent to this
appeal, it is helpful to briefly restate the facts of that case. The
Livent appeal arose out of the receivership of a theatre company,
Livent Inc. (“Livent”), whose principals were fraudulently
manipulating the company’s financial records in order to attract
investment. Its auditor, Deloitte & Touche (“Deloitte”), never
uncovered the fraud, but did identify irregularities in the
reporting of an asset sale in 1997. Nevertheless, Deloitte did not
resign and instead assisted Livent in soliciting investment by
providing a comfort letter and helping to prepare and approve
a press release that misrepresented the basis for the reporting of
Livent’s profit from the fraudulent sale. It also prepared Livent’s
1997 audit, finalized in 1998 after Deloitte’s discovery of the
reporting irregularities. When the fraud was subsequently
uncovered by new equity investors, Livent filed for insolvency
protection and was placed into receivership.
