The plaintiffs commenced an action against the Attorney General, alleging that the Crown attorneys that prosecuted the plaintiffs’ criminal charges were negligent and misfeasant. The Crown brought a motion to strike on various grounds, including pursuant to Rule 21.01(1)(a) on the grounds that the action was barred by the expiry of the limitation period. The Attorney General did not plead a limitations defence and the motion judge dismissed the motion to strike based on the limitations issue. The Attorney General appealed. The Court of Appeal discouraged the use of Rule 21 to determine limitation issues, reasoning that application of the Limitations Act is not a matter of law. It confirmed that limitations issues are not properly determined under Rule 21.01(1)(a) unless pleadings are closed and the facts are undisputed.
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