to abide by any Order this Court may make concerning damages
arising from the granting and enforcement of this Order”.
 Cosimo Borrelli, the trustee of the SFC Litigation Trust
(the “trustee”) and the plaintiff in the action, filed two affidavits
in support of the Mareva motion. The first affidavit, sworn
August 22, 2014, was filed in support of the initial ex parte order.
The second affidavit, sworn June 6, 2015, supplements the first
affidavit and was filed in response to the appellant’s motion to
set aside or vary the Mareva injunction.
 The trustee’s first affidavit contains 330 paragraphs and
is 111 pages in length. The last two paragraphs deal with the
undertaking, and are as follows:
329. I understand that unless relieved of the obligation by this Court, the
SFC Litigation Trust must provide an undertaking to abide by any order
concerning damages that the Court may make if it ultimately appears that
the granting of the order it seeks has caused damage to Chan for which the
SFC Litigation Trust ought to compensate Chan. On behalf of the SFC Litigation Trust, I am prepared to provide that undertaking if it is required.
330. Given the lack of transparency with respect to the location of billions of
dollars in assets, the Litigation Trust’s ability to provide an undertaking
as to damages is somewhat constrained. However, the Litigation Trust
currently holds several choses in action in Hong Kong and Ontario against
a number of third parties and outstanding litigation in Ontario against a
number of other third parties. The Litigation Trust also holds assets
in Canada by way of accounts receivables in relation to the settlement of
 It is clear from the last sentence, in para. 329, above,
that, despite the preamble in the order, the trustee was not
providing an undertaking as to damages, unless required. I do
not blame the motion judge for the disconnect, given the volume
of material before him and the urgency of the situation. It was
up to counsel to point out that no undertaking was offered unless required by the court.
 Following the order, it is clear that the trustee considered
no undertaking was required because no undertaking was provided. It was not until February 23, 2015, some six months after
the order, that the trustee provided an undertaking and then
only because the appellant’s counsel raised the issue before
the motion judge at an appearance on January 30, 2015 and the
motion judge indicates that he intended that the undertaking be
provided. Even then, the undertaking provided was by the litigation trust and signed by the trustee. The appellant objected to
the form of the undertaking and took the position that it should
come from the trustee personally.
 The appellant’s motion to vary the Mareva injunction was
commenced on April 24, 2015 and included requests for orders