which Buckingham then filed confidentially with the OSC.
Although the motion judge observed that the Form 9 Reports were
used by the OSC to police securities dealers and that their purpose
was to protect investor assets, it does not necessarily follow that
the audit of the Form 9 Reports creates proximity between an
auditor and those investors. The Auditor made no representations
to members of the Class, most of whom never even knew of the
Auditor’s existence or its involvement with Buckingham. The
Auditor did not undertake to assist the Class in making investment
decisions. The limited scope of the Auditor’s undertaking and lack
of direct connection between the Auditor and the Class militate
against finding proximity in this case.
 In my view, the interposition of the OSC and Buckingham
between the Auditors and the Class rendered the relationship
between the parties too remote to ground a duty of care. The Auditor may well have owed a duty of care to Buckingham to properly
conduct the audit. Perhaps an argument could be made that a duty
was also owed to the OSC (which provided regulatory oversight
and received the audit reports). This, however, is an issue I need
not determine. In this case, the Auditor’s undertaking did not
extend to assisting the Class members — who, as mentioned earlier and as the motion judge noted, never saw the Form 9 Reports
and did not even know of their existence — with supervising Buckingham and making investment decisions. As a result, I am of the
view that the Auditor’s undertaking in this case strongly militates
against a finding of proximity.
 A second related consideration weighing against holding
that the Auditor and Class were in a proximate relationship for
the purpose of the Form 9 Reports is the absence of any reliance,
whether intended or not. Indeed, the Class conceded that the
members did not rely on or review any of the Form 9 Reports. As
I have indicated, the Form 9 Reports were held confidentially by
the OSC. They were not shared with the Class and not intended
to inform or induce the Class in making investment decisions.
The absence of the class members’ reliance on the Form 9
Reports further supports my view there is no proximity between
the Auditor and the Class in relation to the Reports.
 The third reason that informs my conclusion that the
motion judge erred in finding proximity is because, with respect, I
am of the view that his analysis is based, in part, on factual findings that amount to palpable and overriding errors.
 First, the motion judge found that the Auditor, and not Buckingham, filed the Form 9 Reports with the OSC. This is incorrect.
Although the Auditor audited the Form 9 Reports, the obligation
to file the Form 9 Reports rested with Buckingham. Second, the