Cooper v Hobart

Cooper modified the English Anns/Caparo test for new duties of care. The first stage asks whether the harm was reasonably foreseeable and whether the parties were in a relationship of sufficient proximity. The second stage asks whether residual policy concerns negate the duty.

Investors of a mortgage broker, Eron, sued the BC Registrar of Mortgage Brokers for negligence in failing to supervise. The investors alleged the Registrar should have intervened earlier to prevent their losses.

Does a public regulator owe a private-law duty of care to investors?

No. Action struck.

For novel duties of care: (1) Stage 1 — was harm reasonably foreseeable, and was there proximity (a relationship of sufficient closeness having regard to expectations, representations, reliance, statutory framework, and the interests engaged)? (2) Stage 2 — even if proximity is found, do residual policy considerations (e.g. indeterminate liability, conflict with statutory duty) negate the duty?

The Court held that the Registrar's duty was to the public, not to private investors. There was no proximity: no representation made to investors and no reliance. Even if proximity existed, policy considerations — indeterminate liability and conflict with the regulator's duty to the public — would negate the duty.

The dominant Canadian framework for new tort duties. Distinguishes Canadian doctrine from the English Caparo three-stage test (which abandons foreseeability + proximity + fairness as a test). Refined in Childs, Hill, Mustapha, and Edwards v Law Society of Upper Canada.

Cooper v Hobart, 2001 SCC 79, [2001] 3 SCR 537.

McLachlin CJ, L'Heureux-Dubé J, Gonthier J, Iacobucci J, Major J, Bastarache J, Binnie J, Arbour J, LeBel J