(3) Application: The duty of care analysis
(a) Stage one: Is there a prima facie duty of care?
( i) Proximity
 I agree with the Auditor that the motion judge, who, as I
previously indicated, did not have the benefit of the Livent decision, conflated the questions of proximity and foreseeability and
that he did not conduct a proper proximity analysis in this case.
This is a legal error. Conducting such an analysis, and in light of
the Supreme Court’s refinements of the Anns/Cooper test in
Livent, in my view, the Class’s claim fails on the first branch of that
test and this court can intervene: see Housen v. Nikolaisen, 
2 S.C.R. 235,  S.C.J. No. 31, 2002 SCC 33, at para. 36. I do
not believe that proximity is established between the Auditor and
the Class in relation to the Form 9 Reports. As I explain below,
the parties are not in “such a ‘close and direct’ relationship that it
would be ‘just and fair having regard to that relationship to
impose a duty of care in law’”: Livent, at para. 25.
The relationship does not fit within a previously
established category of proximity
 I begin by observing that the relationship between the Auditor and the Class does not fall within a previously established or
analogous category of relationship where proximity has already been
found. The Class has not identified any case in which a duty of care
has been recognized between an auditor and a company’s investor
account holders for purposes of auditing the company’s Form 9
Reports or through a similar component of the securities statutory
regime. Accordingly, this court must undertake a full proximity
analysis to determine whether there is a sufficiently “close and
direct” relationship to ground a duty of care: Livent, at para. 29.
No relationship of proximity is established in the
 In conducting the proximity inquiry, courts must examine all
relevant factors arising from the relationship between the parties.
The relevant factors vary depending on the circumstances of the
case. They may include reliance, expectations, representations,
property or other interests and statutory obligations: Livent, at
para. 29, citing, inter alia, Cooper, at paras. 35 and 38; Odhavji
Estate v. Woodhouse,  3 S.C.R. 263,  S.C.J. No. 74, 2003
SCC 69, at paras. 50 and 56; Fullowka v. Pinkerton’s of Canada
Ltd.,  1 S.C.R. 132,  S.C.J. No. 5, 2010 SCC 5, at
para. 26; Edwards v. Law Society of Upper Canada,  3 S.C.R.