Executive Summary: Key Legal and Evidentiary Issues

• Validity of email notification of an originating application in damages to a foreign corporate defendant in the absence of compliance with the ordinary rules of service by bailiff.
• Threshold for authorizing a “mode spécial” of notification under articles 112 and 494 C.p.c., and whether cost, delay and logistical inconvenience alone amount to “circonstances [qui] exigent” a special mode.
• Effect of incomplete evidence regarding the identity and role of the email addressee used for technological notification in ensuring that a new defendant is adequately informed of proceedings.
• Interaction between Quebec civil procedure and international service when the defendant is domiciled in a state (Ecuador) that is not party to the 1965 Hague Service Convention, and the continuing primacy of domestic service rules.
• Impact of a defendant’s diligence in attempting to access electronically-served documents on the assessment of whether defective service can be cured or ratified.
• Court’s discretion to relieve a party from a missed review deadline and to extend the three-month limitation period for notification to prevent peremption of the originating application.

Factual background of the commercial dispute

Nutriart S.E.C. and Ecuador Kako Processing Proecuakao S.A. operate in the food industry. In May 2025, Nutriart ordered a significant quantity of cocoa liquor from Proecuakao, which was delivered in May and June 2025 and used by Nutriart as a raw material in its food products. During June 2025 quality control testing, Nutriart discovered that several of its finished products were contaminated with peanuts. It attributed this contamination to the cocoa liquor supplied by Proecuakao, which had been incorporated into Nutriart’s products. Nutriart alleges that laboratory analyses of Proecuakao’s cocoa liquor also revealed peanut contamination, even though the supplier certified that its products contained no traces of peanuts. Nutriart itself represented to its customers that its products were free from allergenic ingredients such as peanuts. Once the contamination issue emerged, Nutriart reported the matter to the Canadian Food Inspection Agency and recalled all products containing the allegedly contaminated cocoa liquor. The recall led Nutriart to refund customers who had purchased the products, compensate those who suffered damage, and face exposure to potential claims from multiple clients. On 10 September 2025, Nutriart filed an originating application in damages, seeking nearly CAD 15 million from Proecuakao for these losses. This amount reflects recall expenses, reimbursements, indemnities and related alleged exposure arising from the peanut contamination incident.

Procedural context and initial authorization of special notification

The dispute before the Court in this judgment is not about liability or the merits of Nutriart’s product-contamination claim. Instead, it focuses entirely on civil procedure: how the originating application was notified to the foreign defendant. Proecuakao is incorporated and domiciled in Ecuador and has no establishment in Québec or elsewhere in Canada. Its head office address was known to Nutriart and appears in the heading of the originating application. On 12 September 2025, two days after filing its damages claim, Nutriart applied for authorization to use a “mode spécial de signification,” specifically technological notification by email, under article 112 C.p.c. To support this request, Nutriart filed a sworn declaration from its general manager, Mr. Jean-Philippe Leclerc, attesting that Proecuakao had no known address in Québec or Canada and regularly communicated with Nutriart using the email address hoover.celleri@ecuakao.com. The motion for special notification advanced essentially three grounds: that Proecuakao carried on business in Ecuador, making personal service abroad particularly costly and complex; that translation and international transmission delays were significant; and that, given ongoing email communications between the parties, electronic notification was said to be reasonable, efficient and proportionate. The motion did not allege any prior attempt to effect service by bailiff, any urgency based on the nature of the case, or any difficulty contacting Proecuakao through ordinary channels. Nor did it identify the name, position or link of the email addressee with the defendant company.

On 26 September 2025, the special clerk, Me Conchetta Borregales, granted Nutriart’s motion on the record, authorizing notification of the originating application and all subsequent procedures by technological means, namely to the email address hoover.celleri@ecuakao.com. This became the pivotal decision later challenged by Proecuakao.

Events following technological notification and the defendant’s reaction

On 29 September 2025, a bailiff retained by Nutriart sent an email to the authorized address. The email, drafted in English, contained a link to a third-party download platform from which the recipient was supposed to retrieve the originating application in damages, the notice of summons, and the associated certificate of authenticity. The address proved to be that of Mr. Hoover Celleri, Proecuakao’s general manager and legal representative. Mr. Celleri promptly opened the email and attempted to download the documents, but encountered an error message and was unable to access them. The following day, 30 September 2025, he engaged an Ecuadorian lawyer, Mr. Luis Eduardo Garcia Plaza, to try downloading the documents. Mr. Garcia faced the same technical failure. He then wrote directly to the bailiff, advising that he represented Proecuakao, explaining that the documents could not be downloaded, and asking to receive the documents either as PDF attachments or via a direct link that did not require access to the third-party platform. In that same communication, he expressly stated that his client did not thereby recognize that the proceedings had been validly served. The email went unanswered. Mr. Celleri then sought help from a Canadian lawyer in Ontario through an Ecuadorian contact. That lawyer eventually managed to download the originating application and the special clerk’s decision, transmitted them to Mr. Garcia, and Mr. Garcia in turn forwarded them to Mr. Celleri. The chronology and these efforts are supported by Mr. Celleri’s sworn declaration and by the bailiff’s email notification log. Despite its objections to the mode of notification, Proecuakao responded to the summons through counsel on 29 October 2025, within the 30-day period prescribed by article 490 C.p.c. The response was expressly made “sous toutes réserves, incluant quant à la validité de la signification.” In early November 2025, Proecuakao obtained copies of most of the plaintiff’s exhibits, with Nutriart indicating that written lab reports on the tested samples (to become exhibit P-6) were still outstanding. On 10 November 2025, Proecuakao filed an application for review under article 74 C.p.c., asking the Superior Court to overturn the special clerk’s 26 September 2025 authorization of special notification. It argued that the decision was based on an error of principle regarding international notification and the conditions for authorizing a special notification mode.

Issues of time limits and the Court’s review jurisdiction

Because article 74 C.p.c. provides a 10-day delay to file a review application, Proecuakao also asked to be relieved from its default in meeting this deadline. The delay would ordinarily have run from 26 September 2025. The Court first confirmed that this 10-day period is not a strict or “délai de rigueur” and can be extended, or a party can be relieved from default, under article 84 C.p.c., if the Court considers it necessary in light of the circumstances. Taking into account the nature of the special clerk’s decision, the procedural chronology, the requirements of natural justice, and Proecuakao’s diligence in reacting to the notice and seeking legal assistance, the Court held that it was appropriate to relieve Proecuakao from its default and extend the review deadline to 10 November 2025. The Court then restated the applicable standard: it will intervene on review when there is an error of principle, a determining error, or a failure by the special clerk to exercise discretion judicially. A judgment rendered on review constitutes a new judgment that replaces and extinguishes the original order to the extent of what it provides. This allows the reviewing judge to receive new evidence and consider new allegations relevant to the review application. With this framework in mind, the Court proceeded to evaluate whether the special clerk’s authorization of special notification was consistent with the Code of Civil Procedure and the applicable jurisprudence.

International notification, the Hague Convention and domestic service rules

The Court emphasized that Ecuador is not a contracting state to the 1965 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters. In Québec, the text of that Convention has force of law, but when the foreign state is not a party, the framework is different. In such a case, notification of an originating application to a defendant abroad must be carried out using the modes prescribed in Book I of the Code of Civil Procedure or, alternatively, in accordance with the law in force where notification is to take place, unless circumstances require the Court to authorize another mode under articles 494 and 112 C.p.c. The Court stressed that an originating application in damages must be notified by bailiff (signification) because of its special character: it is the document that brings a new defendant into the proceeding and must be brought to that party’s attention so it can exercise its rights. While courts retain a broad discretion to authorize other forms of service, even for originating applications, that discretion is reserved for cases where the circumstances genuinely “exigent” a special mode of notification.

Assessment of the plaintiff’s motion for special notification

Turning to Nutriart’s initial motion, the Court found that the special clerk had committed an error of principle by concluding, on the basis of the motion’s limited allegations, that the circumstances required a special notification mode. Nutriart had argued that personal service on a foreign defendant in Ecuador was particularly costly and complex due to translation expenses and international delays. In the Court’s view, such concerns are generic: they apply to virtually any attempt to serve judicial proceedings on a person domiciled in a foreign state that is not a party to the Hague Convention. They do not in themselves constitute “circonstances exigeant” a departure from the ordinary requirement of service by bailiff. Authorizing a special mode of notification on this basis would strip the clear and unequivocal wording of articles 494 and 139 C.p.c. of their meaning, because it would make cost and convenience sufficient grounds in almost every cross-border case. The Court also noted what the motion for special notification did not contain. There was no allegation of urgency in effecting service, no mention of communication problems with Proecuakao, no claim that Proecuakao’s address was unknown, and no account of any prior unsuccessful attempt to serve the originating application by bailiff. Moreover, the motion failed to identify who controlled the email address to which Nutriart sought to send the documents or explain that person’s role within the defendant company. This omission was significant: the object of notification is to advise a new defendant that it is being sued so it can take steps to protect its rights. Authorizing a special mode of service without basic information about who will receive the documents and how they link to the defendant undermines that objective. For these reasons, the Court concluded that the special clerk’s decision rested on incomplete and insufficient information, constituting a determining error of principle that justified intervention on review.

Technical access difficulties and the limits of curing defective service

The Court also addressed Proecuakao’s efforts to access the electronically notified documents. It recognized that the defendant had acted diligently: its general manager promptly opened the email, sought help from local counsel and later from a Canadian lawyer, and ultimately succeeded in obtaining the documents and the clerk’s decision. However, this diligence could not cure the underlying procedural irregularity. The Court stressed that the mere fact that the defendant eventually became aware of the proceedings and engaged counsel did not override the mandatory notification rules in the Code of Civil Procedure. Effectiveness and expediency cannot be pursued at the expense of procedural safeguards and the fundamental right to be heard. Similarly, Proecuakao’s decision to file a response to the summons did not amount to ratification of the service. Because the response was explicitly made under full reservation, including as to the validity of notification, the defendant retained the right to challenge the irregular service. In the Court’s analysis, none of the circumstances in this case justified departing from the standard requirement that an originating application in damages be served by bailiff. Economic considerations and mere convenience were insufficient reasons to authorize special notification.

Outcome of the review application and resulting orders

Having found determining errors of principle in the special clerk’s decision, the Court granted Proecuakao’s review application. It relieved the defendant from its default in missing the 10-day review deadline and authorized the late filing of the review application dated 10 November 2025. It then formally allowed the review, set aside the 26 September 2025 special clerk’s order authorizing special notification, and restored the situation to its prior state, as if the authorization had never been issued. The Court expressly declared that the originating application in damages filed by Nutriart had not been validly notified to Proecuakao. Nutriart had, however, formulated a subsidiary request in case the authorization for special notification was overturned. It asked that the Court extend the three-month notification period specified in article 107 paragraph 3 C.p.c., to prevent its originating application (filed on 10 September 2025) from becoming perempted on 10 December 2025 if not notified by then. Proecuakao did not oppose this subsidiary measure and left the matter to the Court’s discretion. Applying article 84 C.p.c., the guiding principles of civil procedure, and the preliminary provision of the Code, the Court accepted Nutriart’s request and extended the notification period by an additional three months from the date of the judgment, up to 3 March 2026, so Nutriart could properly serve the application by ordinary means.

Absence of insurance policy disputes or contractual clause analysis

Although the underlying commercial relationship involves the sale and supply of cocoa liquor, the judgment does not analyze any specific contractual clauses, warranty provisions, limitation of liability terms, or insurance policy wording. The focus is entirely on how and when the originating application was notified, not on the substantive allocation of risk between the supplier and the buyer or on policy wording. Likewise, there is no discussion of coverage, exclusions or conditions in an insurance contract. The case, as presented in this decision, is therefore a procedural ruling with a product-liability and commercial background but without any adjudication or commentary on policy terms or contractual clauses.

Final observations on the prevailing party and monetary consequences

In this procedural judgment, the prevailing party is the defendant, Ecuador Kako Processing Proecuakao S.A. The Court grants its application for review, sets aside the special clerk’s authorization of special notification, and declares that the originating application in damages was not validly notified. Nutriart, although unsuccessful on the notification issue, obtains an extension of time to notify its claim, preserving its ability to pursue the underlying damages case. The judgment does not decide liability or quantum and does not award any damages or specific costs. The only financial reference is the plaintiff’s claim for nearly CAD 15 million, which remains unadjudicated. Court costs are reserved to follow the eventual outcome of the litigation, and no monetary award, indemnity, or costs amount can be determined from this decision.