LeBel J.
LeBel J. — Despite the arguments put forward by counsel for the appellant, the appeal cannot succeed. In the circumstances of this case, as was held by the Quebec Court of Appeal, art. 2474 of the Civil Code of Québec, S.Q. 1991, c. 64, does not preclude the conventional subrogation of the insurer to the rights of the hypothecary creditor against its debtor, in light particularly of the principles laid down by this Court in Caisse populaire des Deux Rives v. Société mutuelle d’assurance contre l’incendie de la Vallée du Richelieu, [1990] 2 S.C.R. 995. The subrogation was obtained pursuant to a hypothecary clause that was a separate contract. The debtor could thus not be regarded as the insured within the meaning of this separate contract or, consequently, within the meaning of art. 2474 of the Civil Code of Québec. Furthermore, the appellant’s motion to cancel the hypothec as presented did not permit an adjudication of the issues relating to the insured’s claim that the insurance indemnity was payable, to the existence of an intentional fault on the part of the insured or to the right of the respondents to be reimbursed for the amounts paid to the hypothecary creditor. These issues will have to be dealt with during the trial to be held before the Quebec Superior Court. If the insurers fail in their attempt to establish the intentional fault of the appellant, then acquittance and release will have to be given with respect to all registrations entered in the land registers pertaining to the subrogation and the hypothecary debt it covered.
For these reasons, the appeal is dismissed with costs.