The plaintiff was injured by a passing vehicle while on the shoulder of a highway. He could not identify the owner/operator of the vehicle and commenced an action against his own insurer pursuant to the unidentified motorist provisions of his auto policy. The insurer later obtained the police file, which potentially identified the driver of the passing vehicle. The plaintiff commenced an action against the driver, who brought a motion to strike under Rule 21 on the grounds that the action was statute-barred by the expiry of the two-year limitation period. Justice Faieta dismissed the motion, holding that the limitations issue was improperly raised on a Rule 21 motion because application of the Limitations Act is an issue of mixed fact and law to which there was factual disagreement. He also held that the limitation period could not be held to run until the date when the plaintiff knew or ought to have known the identity of the owner or operator of the vehicle that injured him.
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