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Construction - Liens (2). JP Reno Inc. v. Warner [useful CA summary cases]
In JP Reno Inc. v. Warner (Ont Div Ct, 2026) the Ontario Divisional Court dismissed an appeal, this brought against "an order to discharge the [SS: construction] lien and vacate the registration. The motion judge found that the lien had expired since it was not perfected by filing a Certificate of Action within the required timeline after the contract was terminated or abandoned.".
Here the court usefully sets out basics of the construction lien regime:A. Construction Act – Statutory Scheme
[20] As legislative background, the Construction Act is designed to give priority and security to contractors and subcontractors that supply services or materials to real property, including through the mechanism of the construction lien. Because a lien is created under the Act as part of a comprehensive scheme, a lienholder must comply strictly with the prescribed time periods and other requirements of the Act: see Scepter Industries Ltd. v. Georgian Custom Renovations Inc., 2018 ONSC 988, 89 C.L.R. (4th) 174, at paras. 20-21; rev’d on other grounds, 2019 ONSC 7515, 441 D.L.R. (4th) 359 (Div. Ct.). The time limits set out in the Act “[leave] no room for judicial discretion. This strict construction seeks to ensure that parties in the construction pyramid [of contractors and subcontractors] ‘know where they stand’”: Roe (c.o.b. Superior Painting) v. Elgaard Developments Inc., 2016 ONSC 7831, 72 C.L.R. (4th) 77, at para. 10; Delview Construction Ltd. v. Meringolo (2004), 2004 CanLII 11188 (ON CA), 71 O.R. (3d) 1 (C.A.).
[21] To enforce a lien under the Act, the requirements the lienholder must comply with include those set out in Part V of the Act, titled Expiry, Preservation and Perfection of Liens. The evidentiary burden is on the lienholder to prove compliance with the statutory timelines of preservation and perfection: Nortown Electrical Contractors Associates v. 161975 Ontario Inc., 2010 ONSC 3284, 95 C.L.R. (3d) 204, at para. 4; Gem in Niagara Homes Inc. v. Dewling, 2018 ONSC 3500, at para. 22.
B. Preserving and Perfecting the Lien
[22] Upon the supply of services or materials to the Property under the Contract, the Contractor became entitled to a lien on the Homeowners’ interest in the Property under s. 14(1) of the Act. Section 14(1) provides:Creation of lien
14(1) A person who supplies services or materials to an improvement for an owner, contractor or subcontractor, has a lien upon the interest of the owner in the premises improved for the price of those services or materials. [23] As explained further below, to enforce the lien, the lienholder is required to both “preserve” and “perfect” the lien. A lien expires if the lienholder does not preserve and perfect the lien within the required time periods. Provided the other requirements of the Act are met, a lien that attaches to the premises is preserved or perfected by means of the registration of the prescribed instrument on the subject property’s title. To “preserve” the lien, registration of a “claim for lien” is required: Act, s. 34(1)(a). To “perfect” the lien, the required instrument is a “certificate of action” issued following the issuance of a Statement of Claim that commences a construction lien action: Act, s. 36(3)(a).
C. Preserving the lien
[24] Under s. 31(1) of the Act, a lienholder is required to preserve their lien under s. 34 of the Act within the time period prescribed in s. 34. Otherwise, the lien expires.
[25] Under s. 34(1)(a) of the Act, a lien may be preserved by the registration of a claim for lien on the subject property’s title “during the supplying of services or materials or at any time before the lien expires” (emphasis added). In the matter before us, the Contractor’s deadline for registration of its Claim for Lien was as set out in s. 31(2)(b)(ii) of the Act:Contractor’s liens
31 (2) … [T]he lien of a contractor,
...
(b) for services or materials supplied to the improvement where there is no certification or declaration of the substantial performance of the contract, or for services or materials supplied to the improvement after the date certified or declared to be the date of substantial performance, expires at the conclusion of the 60-day period next following the occurrence of the earlier of,
(i) the date the contract is completed, and
(ii) the date the contract is abandoned or terminated.
[Emphasis added.] ....
D. Perfecting the lien
[27] A lien may not be perfected unless it is preserved: Act, s. 36(1). A preserved lien expires unless it is perfected “prior to the end of the 90-day period next following the last day, under section 31, on which the lien could have been preserved”: Act, s. 36(2). In the matter before us, the lien would have been perfected by the registration of a certificate of action on the Property’s title within the required time period “except were an order to vacate the registration of the lien is made”: Act, s. 36(3)(a).
[28] To preserve the lien in this case, the Contractor was required to commence the construction lien action and register the Certificate of Action on the Property’s title “within 150 days from the date that the contract was abandoned or terminated, if either event occurred”: Decision, at para. 24. The 150-day period is calculated by aggregating the 60-day and 90-day periods in ss. 31(2)(b) and 36(2) of the Act, respectively. . Chaly v. Structured Restoration Inc.
In Chaly v. Structured Restoration Inc. (Ont CA, 2025) the Ontario Court of Appeal considered the appeal route from "an application to remove a lien registered on a property" under s.71(1) of the Construction Act:[2] In advance of the hearing, this court raised the issue of whether it has jurisdiction over the appeal or whether the appeal lies to the Divisional Court pursuant to s. 71(1) of the Construction Act. Ms. Chaly initially made written submissions on the issue taking the position that this court has jurisdiction. The respondent took the position in its factum that the appeal should have been brought to the Divisional Court. In advance of the hearing, after reviewing the respondent’s submissions on jurisdiction, Ms. Chaly advised that she now agreed that the appeal should have been brought to the Divisional Court.
[3] The parties attended before us to address the issue of whether the appeal should be transferred to the Divisional Court and the issue of costs. They both advised that they agreed that the appeal should be transferred to the Divisional Court and that the issue of costs should be addressed by the Divisional Court.
[4] We agree that this court does not have jurisdiction over the appeal and that the appeal should be transferred to the Divisional Court. We briefly explain the basis for reaching this conclusion.
[5] Section 71(1) of the Construction Act provides that:Except as otherwise provided in this section, an appeal lies to the Divisional Court from a judgment or an order on a motion to oppose confirmation of a report under this Act. [6] This court has interpreted s. 71(1) broadly to mean that an “appeal involving only proceedings under the Construction Lien Act, R.S.O. 1990, c. C.3”, now the Construction Act, is to be brought in the Divisional Court: Villa Verde L.M. Masonry Ltd. v. Pier One Masonry Inc. (2001), 2001 CanLII 7060 (ON CA), 54 O.R. (3d) 76 (C.A.), at para. 1. While s. 71(1) refers to “judgments” made under the Act, the Divisional Court’s jurisdiction extends to “orders” made under the Act: Villa Verde, at paras. 7-8; MGW-Homes Design Inc. v. Pasqualino, 2024 ONCA 422, 172 O.R. (3d) 770, at para. 3.
[7] In contrast to cases where an appeal lies to the Divisional Court, in Arcamm Electrical Services Ltd. v. Avison Young Real Estate Management Services LP, 2024 ONCA 251, at para. 17, this court found that the judgment appealed from in that case was “not made in reliance on the Construction Act” because the source of the court’s jurisdiction below was r. 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 (emphasis added).
[8] In this case, Ms. Chaly brought an application to discharge the lien registered by the respondent. The notice of application, with which Ms. Chaly initiated the application, explicitly states that the application is brought pursuant to and in reliance on the Construction Act. In concluding that the lien was valid, the application judge interpreted s. 14(1) and the definition of “improvement” in s. 1(1) of the Construction Act. This is precisely the type of issue that falls within the ambit of the Construction Act. It was a decision made in reliance on the Construction Act.
[9] In her written submissions on the issue of jurisdiction, Ms. Chaly explained that she brought the application under s. 47(1) of the Construction Act, which gives the court the power to discharge a lien “on motion”, including “on any … proper ground”. In this case, Ms. Chaly brought an application rather than a motion. It may be that the proper route for challenging the lien was within the action brought by the respondent to seek payment for the work it had done and pursuant to which the lien was registered. However, this issue was not raised below. Moreover, it would put form over substance to decide the issue of jurisdiction on the basis of whether Ms. Chaly attempted to discharge the lien by way of an application rather than a motion. Given that the substance of Ms. Chaly’s proceeding was to challenge the validity of the lien, an issue that falls squarely within the ambit of the Construction Act pursuant to s. 47(1) and that required interpretation of provisions of the Act, we are satisfied that s. 71(1) applies in this case and that the proper route of appeal is to the Divisional Court.
[10] Pursuant to s. 110(1) of the Courts of Justice Act, R.S.O. 1990, c. C.43, this court has the power to transfer the appeal to the Divisional Court. We are satisfied that this in an appropriate case for transfer to the Divisional Court.
[11] We order that the appeal be transferred to the Divisional Court. As agreed between the parties, the costs of the appeal before this court are to be decided by the Divisional Court. . 2607634 Ontario Ltd. v. Thareja
In 2607634 Ontario Ltd. v. Thareja (Ont Div Ct, 2025) the Ontario Divisional Court dismissed an appeal, here brought against a motion order declaring a construction lien "expired and vacated":[2] The respondent brought a motion to have the lien declared expired and vacated, which was heard by Justice Stewart on December 20th, 2024. In an endorsement dated March 13, 2025, Justice Stewart granted the motion and found that the lien claimant failed to perfect the lien under s. 36(2) of the Construction Act, R.S.O. 1990, c. C. 30 (Act) in that it did not register the certificate of action in a timely fashion. Further, the lien expired because the appellant failed to observe the requirement under s. 37(1) of the Act, which provides that a lien expires immediately after the second anniversary of the commencement of the action unless it is set down for trial, or an order is made for the trial of an action in which the lien may be enforced.
[3] The appellant appeals the motions justice’s decision.
[4] For the following reasons, the appeal is dismissed.
[5] Subsection 45(1) of the Act requires the court to declare a lien expired and to vacate it, if it is not perfected in accordance with s. 36. Subsection 46(1) of the Act requires the court to declare a lien expired and to vacate the lien where it expires under s. 37. These provisions are mandatory statutory requirements, and the court has no discretion to relieve from them: K.H. Custom Homes Ltd. v. Smiley, 2015 ONSC 6037 (Div. Ct.), at paras. 3-4. The motions justice committed no error in following this well-established law.
[6] The appellant’s submission that the respondent did not plead that the lien was not perfected is inaccurate and even it was true, it does not absolve a lien claimant of its statutory obligations. Moreover, failure to perfect under s. 36(3) is not a mere procedural irregularity and it expressly does not fall within the remedial provision of s. 6 of the Act, which applies only to minor errors or irregularities in relation to subsections 32(2), 33(1) and 34(5). Thus, the appellant’s reliance on Gillies Lumber Inc. v. Kubassek Holdings Inc., 1999 CanLII 3757 (ON CA), at para. 39, is misplaced.
[7] Other provisions relied upon by the appellant also have no application. Subsection 51(b) of the Act does not allow the court to cure irregularities. Rules 2.01(1) and 3.02 of the Rules of Civil Procedure do not apply since missing the deadlines is a statutory breach not a Rules breach.
[8] On this basis alone, Justice Stewart was correct in declaring the lien expired and vacating it.
[9] Although not required, I would also find that Justice Stewart’s decision regarding s. 37 did not fall into error. At a pre-trial hearing under Rule 50 in the case at bar, on July 19, 2023, Associate Justice Graham simply made a timetable order for discovery procedures and the scheduling of a further pre-trial conference. I agree with Justice Stewart’s conclusion that this order does not fall within the ambit of s. 37(1).
[10] Furthermore, given that these provisions are mandatory, it is irrelevant that the parties agreed that the matter was not ready for trial, or that an order was made setting a timetable. Contrary to the appellant’s position, neither the doctrine of estoppel nor s. 142 of the Courts of Justice Act, R.S.O. 1990, c C.43 operates to relieve the appellant from complying with the statutory deadlines. . 1995636 Ontario Inc. C.O.B. 2B Developments v. 5010729 Ontario Inc. C.O.B. as Astute Capital Corp.
In 1995636 Ontario Inc. C.O.B. 2B Developments v. 5010729 Ontario Inc. C.O.B. as Astute Capital Corp. (Ont Divisional Ct, 2024) the Ontario Court of Appeal allowed an appeal from a dismissed motion to stay [under R63.02(1)], here of an order discharging a CA lien.
The court considered liens under the Construction Act:[31] At this point, it is important to review the characteristics of a lien.
[32] First, a lien is a statutory right under the Act. (Sections 14 and 15).
[33] Second, the parties agree that the discharge of a lien is irrevocable, and once gone, cannot in any way be reversed by the court, even on appeal. See JDM Developments Inc. v. J. Stollar Construction Ltd., [2006] O.J. No. 2620 (Sup. Ct.), per Justice Valin at para. 9.
[34] The lien stands as security for the amount owed as proven by the lien claimant if the defendant is unable to satisfy a monetary judgment against it.
....
[37] Although 2B can proceed against Astute on a judgment, a refusal to stay the discharge of the lien will cause irreparable harm to the moving party that cannot be compensated with costs.
[38] A request in a Notice of Appeal requesting a reinstatement of a lien is moot. As stated in JDM at para. 11, “The registered discharges of the liens and certificates of action are irrevocable. A discharged lien cannot be revived in any manner.”
[39] H.I.R.A. Limited v. Middlesex Standard Condominium Corporation No. 823, 2018 ONSC 3661, is instructive. Justice Morawetz (as he was then) had to determine if the order appealed from was interlocutory (thereby requiring leave in the Divisional Court) or final. He first determined that an order that reduces a portion of the claim from being secured to unsecured is a substantive issue and deprives a lien claimant of certain legal rights and hence the order is final. He then determined the stay motion and found that the lien claimant’s loss of security would result in a loss of security and hence would be considered irreparable.
[40] At para. 19 in Warren Woods Land Corporation v. 1636891 Ontario Inc., 2012 ONCA 12, at para. 19, the court stated that “Irreparable harm is harm that cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other”. However, the lien holds specialized relief and is significant right under the Act and if a stay is not granted, it will be lost forever.
....
[45] Astute argues that a lien is a statutory right but not an absolute one as it is a privilege under the law which can be removed under the appropriate circumstances. Astute submits that 2B does not come to court with clean hands given the deception and the extensive findings of lack of credibility made by the trial Judge. See Urbacon Building Groups Corp. v. Guelph (City), 2014 ONSC 3840. There have been findings of bad faith on the part of 2B by the trial judge, so it does not come to court with “clean hands”.
[46] In Kamali Design Home Inc. v. Bondarenko, 2013 ONSC 5506, Justice McEwen quotes from Louch v. Louch, 2011 ONSC 2998, where Justice Power at para. 29 states that: “The right to register a lien and a certificate of action is a privilege under our law. However, it is a privilege that can be removed in appropriate circumstances.”
[47] Justice Power referred to Master Albert’s decision in Federated Contractors Inc. v. Ann-Maura Developments Inc., 2010 CarswellOnt 370, 2010 ONSC 346. In Louch, the court stated at para. 40 that: “The court will not be an accomplice to an abuse of the Construction Lien Act. The Act is designed to provide an extraordinary remedy to legitimate suppliers of materials and services to construction projects.” In the Federated case, the court found that the lien claimant did not come to court with clean hands and hence forfeited any entitlement to benefit from the act and its extraordinary remedy.
[48] Justice Power found that the lien claim was false and was an attempt to frustrate the mortgagees in their attempts to pursue the mortgagee remedies.
[49] In Morguard Residential v. Mandel, 2017 ONCA 177, at para. 18 the court stated that a stay is a discretionary remedy and hence the court must consider the “clean hands” doctrine. At para. 29, the court found that the Landlord and Tenant Board’s finding of bad faith on the part of the moving parties militated against the exercise of the court’s discretion to stay the order. . Demikon Construction Ltd. v. Oakleigh Holdings Inc. [s.44 - 'Vacating lien by payment into court']
In Demikon Construction Ltd. v. Oakleigh Holdings Inc. (Div Court, 2024) the Ontario Divisional Court allowed a Construction Act appeal, here against an order which reduced the required amount of posted lien bond in order to vacate "a claim for a construction lien on the title of the project land".
Here the court considers the correct application of CA s.44(5) ['Vacating lien by payment into court - Reduction of amount paid into court']:[7] In May 2017, Demikon entered into a Construction Management Contract (the “Contract”) with Aurelia to act as the Project’s construction manager. The Contract required Demikon as general contractor to retain and manage subcontractors to perform the necessary work for the Project. Upon the supply of services or materials for the Project, Demikon became entitled to a lien on Aurelia’s interest in the Project land pursuant to s. 14(1) of the Construction Act, R.S.O. 1990, c. C.30. Section 14(1) provides:Creation of lien
14(1) A person who supplies services or materials to an improvement for an owner, contractor or subcontractor, has a lien upon the interest of the owner in the premises improved for the price of those services or materials. [8] By letter dated March 29, 2021, Aurelia notified Demikon that Aurelia was terminating Demikon’s right to perform the work under the Contract. Aurelia alleged numerous delays to the Project, deficiencies in the work of Demikon and its subcontractors, and failures to cure defaults incurred by Demikon. In its letter, Aurelia noted that it had previously sent notices to Demikon of its intention to pay Demikon’s subcontractors for work performed on the Project, or of actual payments made. The letter also stated that Aurelia was providing notice under s. 28 of the Construction Act of its “intention to continue paying certain of Demikon’s subcontractors who have completed work at the Project in order to further mitigate Aurelia’s losses at the Project, including, but not limited to, Magest Building Systems Ltd.” In March 2022, Aurelia provided Demikon with a further notice of intention under s. 28 to make direct payments to Demikon’s subcontractors: see Motion Decision, at para. 20(iii).
[9] Section 28 [which is in Part IV (holdbacks) of the Construction Act] provides:Direct payment to person having lien
28 Where an owner, contractor or subcontractor makes a payment without obligation to do so to any person having a lien for or on account of any amount owing to that person for services or materials supplied to the improvement and gives written notice of the payment or the intention to pay to the proper payer of that person, the payment shall be deemed to be a payment by the owner, contractor or subcontractor to the proper payer of that person, but no such payment reduces the amount of the holdback required to be retained under this Part [IV] or reduces the amount that must be retained in response to a written notice of lien given by a person other than the person to whom payment is made. [Emphasis added.] [10] As defined in s. 1(1) of the Construction Act:“person having a lien” includes both a lien claimant and a person with an unpreserved lien;
“lien claimant” means a person having a preserved or perfected lien;
[Emphasis added.] ....
III. Motion to reduce posted security
[15] By Notice of Motion dated December 23, 2022, Aurelia sought an order that the security Aurelia previously posted be reduced from $5,085,812.66 to “a lesser and reasonable amount determined by the Court pursuant to s. 44(5) of the Construction Act”. Section 44(5) provides:Reduction of amount paid into court
(5) Where an amount has been paid into court or security has been posted with the court under this section, the court, upon notice to such persons as it may require, may order where it is appropriate to do so,
(a) the reduction of the amount paid into court, and the payment of any part of the amount paid into court to the person entitled; or
(b) the reduction of the amount of security posted with the court, and the delivery up of the security posted with the court for cancellation or substitution, as the case may be. ....
[19] In the Motion Decision, at para. 8, in addition to ss. 14, 28 and 44(5), the motion judge set out the following sections of the Construction Act as being relevant for the motion:Limitation on value of lien
17(1) The lien of a person is limited to the amount owing to the person in relation to the improvement and, subject to Part IV (holdbacks), it is further limited to the least amount owed in relation to the improvement by a payer to the contractor or to any subcontractor whose contract or subcontract was in whole or in part performed by the supply of services or materials giving rise to the lien.
Idem
(2) Subject to Part IV, the total value of the liens of all members of a class, as defined in section 79, is limited to the least amount owed in relation to the improvement by a payer to the contractor or to any subcontractor whose contract or subcontract was in whole or in part performed by the supply of services or materials made by the members of the class.
Set off
(3) Subject to Part IV, in determining the amount of a lien under subsection (1) or (2), there may be taken into account the amount that is, as between a payer and the person the payer is liable to pay, equal to the balance in the payer's favour of all outstanding debts, claims or damages, whether or not related to the improvement….
...
Basic holdback
22.(1) Each payer under a contract or subcontract under which a lien may arise shall retain a holdback equal to 10 per cent of the price of the services or materials, as they are actually supplied under the contract until all liens that may be claimed against the holdback have expired or been satisfied, discharged or otherwise provided for under this Act.
...
Discharge of lien
29. Payments made in accordance with this Part [IV (holdbacks)] operate as a discharge of the lien to the extent of the amount paid. ....
VII. Analysis and conclusion
[42] As explained below, I have concluded that the motion judge erred in interpreting the scope of s. 28 of the Construction Act. To the extent that the motion judge’s analysis related to questions of mixed fact and law, he erred with respect to an extricable question of law, reviewable on a correctness standard.
[43] By its terms, s. 28 applies to direct payments made by third parties “to any person having a lien for or on account of any amount owing to that person for services or materials supplied to the improvement”. In s. 1(1) of the Construction Act, “improvement” is defined as follows:“improvement” means, in respect of any land,
(a) any alteration, addition or capital repair to the land,
(b) any construction, erection or installation on the land, including the installation of industrial, mechanical, electrical or other equipment on the land or on any building, structure or works on the land that is essential to the normal or intended use of the land, building, structure or works, or
(c) the complete or partial demolition or removal of any building, structure or works on the land; [44] Properly interpreted, s. 28 applies to direct payments to a “person having a lien” relating to “any amount owing to that person for services or materials supplied to the improvement” (emphasis added). The motion judge’s error was interpreting the latter quoted words as expanding the scope of s. 28 to include payments to other subcontractors who were not persons “having a lien”, who may include (i) subcontractors who supplied equipment or other chattels (or related services) that did not form part of an “improvement” in the land as defined in the Construction Act, and (ii) subcontractors who previously had a lien that has since expired by operation of the Construction Act or had otherwise resolved. The use of the words “owing to that person” in s. 28 is inconsistent with the motion judge’s conclusion that the scope of s. 28 extends beyond direct payments to a “person having a lien”. Otherwise, including the words “owing to that person” in s. 28 would serve no purpose.
[45] Consistent with that interpretation, in Harvey J. Kirsh & Matthew R. Alter, A Guide to Construction Liens in Ontario, 3rd ed. (Toronto: LexisNexis Canada, 2011), at pp. 84-85, the application of s. 28 was interpreted as not extending beyond direct payments to a “person having a lien”:Section 28 of the Construction Lien Act provides that, where an owner, contractor or subcontractor makes a direct payment to “any person having a lien” with whom he or she does not have privity of contract, that payment is deemed to be a payment to the person who was contractually obliged (i.e., “the proper payer”) to pay the person having the lien. In these circumstances, the amount so paid may be deducted from the debt owing to the proper payer of the person having the lien, but only so long as written notice of the actual payment or the intention to pay is given to the proper payer. [Emphasis added.] [46] That interpretation is also consistent with the commentary relating to s. 28 of the draft Construction Lien Act (the predecessor to the current legislation) contained in Ministry of the Attorney General, Report of Attorney General's Advisory Committee on the Draft Construction Lien Act (Toronto: April 1982),[1] at pp. 71-72. The Attorney General appointed that Committee to prepare a report on recommended changes to rework and replace the Mechanics Lien Act, R.S.O. 1980, c. 261. The Committee’s report has been frequently referenced in other cases.
[47] Limiting the scope of the s. 28 payments to persons having a lien makes sense when considered in the context of the statutory scheme and the purpose of the legislation. While a person has a lien, they have an interest in the owner’s premises and in the holdbacks: Construction Act, ss. 14, 21. The owners have an interest in seeing liens resolved because their lands can be tied up and because they have holdback obligations. This interest, however, disappears once the liens expire or are resolved. Once the liens expire, there is no practical reason under the Construction Act to allow payors to ‘jump the rung’ to avoid privity of contract, which is what s. 28 permits. This analysis is consistent with the conclusion that s. 28 “merely provides a method of preventing the registration of a lien or to facilitate the removal of a lien already registered”: see David Bristow, Duncan Glaholt & R. Bruce Reynolds, Construction Builders’ and Mechanics’ Liens in Canada, loose-leaf, 7th ed. (Toronto: Carswell, 2005, rev. to 2018), at p. 4-27.
[48] In light of the motion judge’s fundamental error in interpreting s. 28, it is unnecessary to further address Demikon’s other submissions, including those related to holdback and the motion judge’s evidentiary determinations.
[49] As previously noted, the motion judge reduced the required amount of posted security by the amount that he found, at para. 39, to be “valid payments under s. 28” of the Construction Act. Given his error as to s. 28’s scope, he did not make findings of fact on the extent that Aurelia made direct payments to subcontractors that met the statutory definition of a “person having a lien” and otherwise fell within s. 28. The record on appeal does not provide a basis for making that determination. In these circumstances, the motion judge’s order cannot stand.
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