Challenges, Striking Pleadings, and Filing Defenses
Recently the Court of Appeal handed down a decision in Brozmanova illustrating that when a party seeks to challenge a pleading, or strike the pleading as the case before the Court, a motion to strike should be made, and must be made, prior to any defense being filed.
In this case it made perfect sense because the defendants, after filing a defense, brought a motion to strike the plaintiff's pleadings under rule 21.1(1)(a) using a Limitations' Defense. The Court said no. You cannot advance a limitations defense in a Motion using a rule that specifically states that only questions of law can be adjudicated on. A limitation defense is a mixed question of law and fact; not allowing the plaintiff to produce the evidence necessary to fight the motion to strike the pleading, and emphasizing why she should be entitled to proceed is akin to closing the door to the plaintiff before they even have an opportunity to make their case.
If you wish to challenge a pleading and strike for being out of time, the Court states better to rely on Rule 20 (Summary Judgments) or Rule 51.06(2) of the Rules of Civil Procedure. This way there is fairness in the procedure. Each of these two rules permits evidence to be relied on.