CITATION: Caisse Populaire de La Vallée Inc. v. Cheikh, 2008 ONCA 68
DATE: 20080201
DOCKET: C47066
COURT OF APPEAL FOR ONTARIO
WEILER, ROULEAU JJ.A. and PARDU J. (Ad hoc)
BETWEEN:
CAISSE POPULAIRE DE LA VALLÉE INC.
Plaintiff (Respondent in the Appeal)
and
MOKHTAR CHEIKH
Defendant (Appellant)
and
DESJARDINS SÉCURITÉ FINANCIÈRE
Third party
François K. Kamemba for the appellant
Julie Audet for the respondent
Heard & released orally: January 30, 2008
On appeal from the summary judgement of Justice Bernard J. Manton of the Superior Court of Justice dated February 8, 2007.
ENDORSEMENT
[1] This is an appeal from a summary judgment granted in an action brought by the respondent on a mortgage.
[2] The appellant concedes that there has been default under the mortgage terms but submits that summary judgment ought not to have been granted. To do so would be unjust as there is an outstanding third party claim involving a disability insurance policy. This insurance policy would cover the mortgage payments in the event of the disability of the appellant, which disability is alleged in the third party proceeding.
[3] On the facts before us, granting summary judgment in the main action would be unjust. There is an issue as to whether the mortgage and the insurance policy are linked and what flows from this. For example, the insurance policy is issued by a company related to the plaintiff and was arranged by the plaintiff concurrently with the mortgage. In addition, premiums for the policy are blended with the mortgage payments and collected by the plaintiff. In addition, the insurer, in correspondence to the plaintiff, stated “nous sommes allés au-delà des engagements prévus au contrat d’assurance prêt qui nous lie à votre institution financière”.
[4] In fairness to the motion judge, this relationship between the insurance policy and the mortgage was not properly pleaded but is apparent from the documentation that has been filed. The appellant has advised this court that he would amend his pleading to reflect the argument that there is a link between the mortgage and the insurance policy.
[5] Further, the insurance policy has not yet been produced by the respondent and it is not clear to us how the appellant’s rights and recourse against the insurer in the third party proceeding will be affected if summary judgment is granted in the main action.
[6] Accordingly, the appeal from summary judgment is set aside and the action will proceed. The appellant is awarded costs of the original motion fixed at $3,000 inclusive of GST and disbursements and of the appeal fixed at $4,500 inclusive of GST and disbursements.
“K.M. Weiler J.A.”
“Paul Rouleau J.A.”
« G.I. Pardu J. (Ad hoc)