



COURT OF APPEAL FOR ONTARIO

CITATION: The Walt Disney Company v. American International
    Reinsurance Company, Ltd., 2018 ONCA 948

DATE: 20181123

DOCKET: C65357

Strathy C.J.O., Benotto and Roberts JJ.A.

BETWEEN

The Walt Disney Company

Applicant (Appellant)

and

American International Reinsurance Company, Ltd.,
as successor to Chartis Excess Limited

Respondent

Timothy M. Lowman and L.E. Trent Horne, for the
    appellant

James W.E. Doris and Derek D. Ricci, for the respondent

Heard: November 21, 2018

On appeal from the order of Justice Andra Pollak of the Superior
    Court of Justice, dated April 12, 2018.

APPEAL BOOK ENDORSEMENT

[1]

The application judge dismissed the appellants request for an order
    declaring that it had properly commenced an arbitration between the parties by
    written demand dated October 6, 2017.

[2]

The arbitration clause in the insurance contract provided that the
    insured (the appellant) could select the venue and procedural laws of Bermuda
    or any one of London, Toronto or Vancouver under the English
Arbitration
    Act
of 1996 (the
Act
), which was incorporated by reference into
    the clause.

[3]

The appellant submits that the correct interpretation of the contract is
    that the parties incorporated the
Act
by reference, but that by virtue
    of s. 2 of the
Act
, the procedural provisions of Part I were excluded,
    save for certain provisions specifically identified in s. 2. In effect, it
    submits that the entire
Act
was incorporated by reference, but that by
    its express terms, the procedural provisions are inapplicable to arbitrations
    outside the UK. It submits that the application judge erred in finding that s.
    14(4) of the
Act
applied to the commencement of the arbitration and
    that instead, the UNCITRAL Rules set out in Ontarios
International
    Commercial Arbitration Act
would apply.

[4]

We disagree. In our view, the plain wording of the contract required
    that where Toronto was the seat chosen for arbitration, the arbitration was to
    be conducted in accordance with the
procedural laws
set out in the
Act
. The interpretation advanced by the appellant does
    not make commercial sense because it would mean that different procedural laws
    would apply depending on whether the arbitration took place in Toronto or
    Vancouver. Moreover, it makes no sense that the parties would agree to have an
    Ontario court apply specific provisions of the
Act
relating to the
    matters set out in s. 2(2), (3) of the
Act
.

[5]

It follows that we agree with the result arrived at by the motion judge,
    notwithstanding that it may have been based on a misapprehension of the
    positions of the parties.

[6]

Assuming we have jurisdiction to determine whether the arbitration has
    been properly commenced, we decline to do so. Should it be necessary to
    determine whether the arbitration has been properly commenced, and if so when,
    that is a question reserved to the arbitrators.

[7]

We therefore agree with the disposition made by the application judge.
    The appeal is dismissed, with costs to the respondent, fixed at $10,000,
    inclusive of disbursements and all applicable taxes.


