Cooper v Hobart  3 S.C.R. 537
Monday November 6, 2017
Trusting an outsider with your money is not a simple thing, especially when you may not always foresee or comprehend what the end result could be. A mortgage broker is someone who carries on a business of lending money secured in whole or in part by mortgages, whether the money is the mortgage broker's own or that of another person.[footnoteRef:1] In this paper, I will briefly review the case Cooper v Hobart  3 S.C.R,[footnoteRef:2] followed by examining whether the court had jurisdiction to recognize a new duty of care. Finally, I will discuss the public policy reasons for and against expanding the Court’s ability to understand and perceive new obligations of care, in particular, those including Statutory Bodies. [1: Mortgage Brokers Act, RSBC 1996, c 313] [2: Cooper v. Hobart, 2001 SCC 79,  3 SCR 537]
In the case, Cooper v Hobart  3 S.C.R, Eron Mortgage Corporation which was a mortgage broker under the Mortgage Brokers Act, had suspended a registered mortgage license because the investor's funds were used for unauthorized purposes. The plaintiff applied to have the action certified as a class action proceeding under the Class Proceedings Act, R.S.B.C. 1996, c. 50. which would owe a private law duty of care to members of the investing public for alleged negligence in failing to properly oversee the conduct of an investment company licensed by the regulator.[footnoteRef:3] The plaintiff also said that the registrar had the right to tell them what came and could come of the investment. Not only did the registrar know about the violation of the Mortgage Brokers Act, but the plaintiff also suggests the registrar should have acted earlier to suspend the actions the investors made followed by communicating to them that the broker was under investigation. By informing the investors about what was happening with the broker, they could have prevented or mitigated loss in the investment. The issue brought to court was that there is a duty of care owed to the plaintiff and the defendant could have communicated to the investors, and/or suspended the license of the broker earlier, thereby mitigating or preventing further loss of investment. The ratio of the case was a revised version of the Anns test, which was initially adopted from Kamloops v. Nielson[footnoteRef:4] to establish a duty of care in civil tort cases. At both stages of the Anns test, a question was developed to find whether there was a relationship required between the plaintiff and appellant or action needed of duty of care. [3: Ibid. at para 6. ] [4: Kamloops v. Nielsen,  2 S.C.R. 2]
The duty of care is a standard in the law of negligence. In any accusation, the claimant must show, among other things, that the defendant owed him/her a duty of care. The starting point is to look for an existing...