Following her decision, the respondents amended their
cross-claim to remove the Attorney General of Ontario and John
O’Driscoll as defendants and amended their pleading respecting
breach of retainer.
 Both in the motion and in the present appeal, the York
Police defendants have appeared and argued in support of the
respondents’ position. They intend to bring a cross-claim similar
to that brought by the respondents.
The Issues on this Appeal
 There are two issues on this appeal:
(1) Did the motion judge err in refusing to strike the cross-claim
because it was not plain and obvious that common law prose-
cutorial immunity applied?
(2) Did the motion judge err in concluding that it was not plain
and obvious that the Crown attorneys owed no duty of care
to the police defendants?
The Standard of Review
 The standard of review is correctness on an appeal concerning a motion to strike pursuant to Rule 21 (see McCreight v.
Canada (Attorney General) (2013), 116 O.R. (3d) 429,  O.J.
No. 3263, 2013 ONCA 483, at para. 38).
The test on a Rule 21 motion
 The motion judge correctly set out the test to be applied on
a Rule 21 motion. On such a motion, the court must consider the
— The material facts pleaded are to be deemed to be proven or
true, except to the extent that the alleged facts are patently
ridiculous, incapable or proof, or are bald statements of
— The novelty of the cause of action is not a bar to the action
— The statement of claim must be read generously to allow for
— The claim must be allowed to proceed unless it is plain and
obvious that it has no reasonable prospect of success.