When confirming the injunction on January 21, 2016, the
motion judge ordered that Emerald Plantation must also provide
an undertaking as to damages. As he stated, it was not clear on
the evidence before him that the respondent had sufficient
assets within the jurisdiction to satisfy the appellant’s potential
damages arising from the Mareva injunction. The motion judge
further required Emerald Plantation to provide an undertaking
in relation to costs as well as to notify the appellant in the event
it experienced a material change in its financial position affecting its undertakings. At that time, Emerald Plantation held
assets in excess of US$226 million.
 The motion judge found that although there was no evidence that the respondent had assets in the jurisdiction, it need
not post security for its undertaking or for the costs of this action
and, instead, as the appellant notes, the motion judge accepted
an undertaking from a foreign corporate non-party that also has
no assets in the jurisdiction. As a consequence, the appellant
asserts that the court does not have jurisdiction over this foreign
corporate non-party and no ability to enforce its direction.
 Leave to appeal to this court was granted on the issue of
whether the motion judge erred in law ( i) in holding that an
Ontario court may grant a Mareva injunction where the defendant has no assets in the jurisdiction; and ( ii) in holding that
the respondent’s undertaking as to damages, along with the
undertaking from Emerald Plantation, was a sufficient undertaking and that such undertaking was sufficient to provide security for costs.
Issue #1: Did the motion judge err in law in holding that an
Ontario court may grant a Mareva injunction where the
defendant has no assets in the jurisdiction?
 I begin by noting that the motion materials included a
motion by the respondents to adduce fresh evidence to establish
that the appellant had paid retainers to three law firms in the
jurisdiction. As a result, the respondent’s factum asserted that
there was no factual foundation for the primary ground of
appeal and the appeal was moot. However, the court made it
clear at the hearing of the appeal that even if the court granted
leave to admit this fresh evidence, it did not consider that these
payments amounted to the appellant having assets in the jurisdiction. The respondent conceded that because the appellant’s
only assets in the jurisdiction had been pledged for legal fees,
the appeal would be argued on the basis that the appellant had
no assets in the jurisdiction.