In Penner v. Niagara (Regional Police Services Board),
 2 S.C.R. 125,  S.C.J. No. 19, 2013 SCC 19, at para.
27, the Supreme Court stated that one of the grounds for setting
aside a discretionary decision of a lower court is if that court
misdirected itself. In my view, in failing to follow the requirements set out in Chitel, the motion judge misdirected himself.
 Unlike my colleagues, I do not consider the issue in this
case to be one of jurisdiction. There is no issue that the appellant
attorned to the jurisdiction of the court. Rather, I view the issue
as an error by the motion judge in the exercise of his discretion.
 Whether a Mareva injunction should be expanded to
encompass assets outside the jurisdiction in the absence of
assets in the jurisdiction in circumstances such as here where
the defendant is not a resident of the jurisdiction raises policy
issues that I do not need to get into.
 I need only say that I do not disagree with the comments
of Weiler J.A. in R. v. Consolidated Fastfrate Transport Inc.
(1995), 24 O.R. (3d) 564,  O.J. No. 1855, 83 O.A.C. 1 (C.A.),
at para. 145, that in recognizing the availability of the Mareva
injunction in Ontario, Chitel does not foreclose all situations
where a Mareva can be granted. I am of the view, however, that
if the requirements for a Mareva as set out in Chitel are to
change, it is the Court of Appeal and not this court that must
 As noted, the Mareva injunction is a harsh remedy, particularly given that it is most often granted on an ex parte basis.
As stated by Estey J. in Aetna, at para. 43: “There is still, as in
the days of Lister, a profound unfairness in a rule which sees
one’s assets tied up indefinitely pending trial of an action which
may not succeed, and even if it does succeed, which may result
in an award of far less than the caged assets.” For that reason,
the courts have put in place various safeguards to prevent abuse
and injustice. One such safeguard which was set out by Lord
Denning in the Third Chandris Shipping Corp. and adopted in
Chitel is the requirement that the moving party must provide an
undertaking as to damages.
 In his brief endorsement granting the ex parte Mareva
injunction on August 28, 2014, the motion judge made no mention of an undertaking. In fairness, however, in the last paragraph of his endorsement, the motion judge ordered that a
Mareva injunction shall issue on the terms of the attached order.
The August 28, 2014 order (the “order”) provides in part, in the
second preamble, “and on noting the undertaking of the Plaintiff