Executive Summary: Key Legal and Evidentiary Issues

• This appeal addresses whether an Ontario action to enforce a Quebec judgment was barred by the two-year limitation period under the Limitations Act, 2002.
   
• Eight years elapsed between the appellant obtaining the Quebec judgment in 2008 and commencing the Ontario enforcement action in 2016.
   
• Three grounds were advanced to avoid the limitation period: estoppel based on a promise to repay, lack of awareness of assets in Ontario, and a written acknowledgment of indebtedness under section 13 of the Act.
   
• None of these grounds was found to be supported by the evidence at trial.
   
• Appellate deference applied since the trial judge's findings involved fact or mixed fact and law.
   
• Failure to identify a palpable or overriding error led to dismissal of the appeal.
   

Facts of the case

Frank Bertucci appealed an order of the Superior Court of Justice dismissing his action against The Toronto Fashion Group Limited and George Elian. Bertucci had obtained a judgment in Quebec in February 2008 but did not commence the Ontario action to enforce that judgment until June 2016, more than eight years later. Justice R. Lee Akazaki dismissed the action, with reasons reported at 2024 ONSC 938, on the basis that it was barred by the two-year limitation period in the Limitations Act, 2002. The appeal was heard and decided orally on July 14, 2026, by Sossin, Monahan, and Osborne JJ.A.

Policy and legislative provisions at issue

The central provision at issue is the two-year limitation period set out in the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. Bertucci argued this period should not apply for three reasons. He first contended the respondents were estopped from relying on the limitation period because Elian had promised to repay his indebtedness "when he was back on his feet." He also argued that he was unaware the respondents held any assets in Ontario until 2016, and so did not know until then that an Ontario enforcement action was appropriate. Finally, he invoked section 13 of the Act, arguing that Elian's written acknowledgment of the debt tolled the running of the limitation period.

Reasoning and analysis

The panel held that the trial judge's rejection of all three grounds was a finding of fact, or of mixed fact and law, and was therefore owed deference on appeal. Bertucci did not identify any palpable or overriding error in the trial judge's findings, and the panel saw no basis for appellate intervention.

Ruling and overall outcome

The appeal was dismissed. In accordance with the agreement of the parties, the respondents, The Toronto Fashion Group Limited and George Elian, were the successful party, and Bertucci was ordered to pay them costs of $25,000 on an all-inclusive basis.