This case was used to overturn a summary judgement of one of our clients at Angel Ronan(Now Angel Ronan, Greenfield Law Firm). He did not pay his fee on time for service and filing and requested an emergency appearance but the Court entertained our good presentation and argument to give him the relief he sought on that day before the Court of Appeal of Ontario. But, he owed outstanding Court costs and he failed to pay the fees on other return dates. He has now confessed that he had decided to refuse to pay the costs of less than $10,000.00 while he had given the Mortgage Credit Union more than $90000.00 in mortgage payments prior to the Court Date. Our Representation was successful! Rightly Decided Series: CITATION: Caisse Populaire de La Va llée Inc. v. Cheikh, 2008 ONCA 68

CITATION: Caisse Populaire de La Va

llée 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 Ju

stice Bernard J. Manton of the Superior

Court of Justice dated February 8, 2007.

ENDORSEMENT

2008 ONCA 68 (CanLII)

Page: 2

[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 be

en default under the mortgage terms but

submits that summary judgment

ought not to have been gran

ted. To do so would be

unjust as there is an outstanding third party

claim involving a disability insurance policy.

This insurance policy would cove

r the mortgage payments in th

e event of the disability of

the appellant, which disab

ility 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 th

e mortgage and the insurance policy are linked

and what flows from this. For example, th

e insurance policy is issued by a company

related to the plaintiff and was arranged by th

e plaintiff concurrently with the mortgage.

In addition, premiums for

the policy are blended with

the mortgage payments and

collected by the plaintiff. In addition, th

e insurer, in correspondence to the plaintiff,

stated “nous sommes allés au-delà des engage

ments prévus au contrat d’assurance prêt

qui nous lie à votre in

stitution financière”.

[4]

In fairness to the motion judge, this rela

tionship 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 ther

e is a link between the mortga

ge 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 a

nd 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 j

udgment is set aside and the action will

proceed. The appellant is awarded costs of

the original motion fixe

d at $3,000 inclusive

of GST and disbursements and of the app

eal fixed at $4,500 inclusive of GST and

disbursements.

“K.M. Weiler J.A.”

“Paul Rouleau J.A.”

« G.I. Pardu J. (Ad hoc)