In what circumstances will a defence or a statutory bar defence not be pleaded?

In Fuller v. Schaff, counsel for the defendants made submissions on both a “policy” defence and a “statutory bar” defence that had not been pleaded. The material facts supporting the defences had also not been pleaded. It was understood that the arguments would be made in court, subject to a decision on whether they could be considered pursuant to the Rules. If the defences were allowed, both counsel indicated they might seek to re-open their cases for further evidence and argument.