



COURT OF APPEAL FOR ONTARIO

CITATION: Kukemueller v. Ontario (Community Safety and
    Correctional Services), 2016 ONCA 451

DATE: 20160608

DOCKET: C60869

Laskin, Lauwers and Roberts JJ.A.

BETWEEN

Gerrit
    Kukemueller, Jacqueline Kukemueller,

Justin
    Kukemueller and Joshua Kukemueller

Plaintiffs (Respondents)

and

Her
    Majesty the Queen in right of Ontario as represented by the

Ministry
    of Community Safety and Correctional Services operating

as the
    Ontario Provincial Police and its employees Kevin Cameron,

Derek
    Robertson, Shawn Filman, Troy Beavis, Mike Davidson, Jason

Katz,
    Jamie Brockley, Malcolm McArthur, Mark Mussington, Marc

Gravelle,
    Robert Flindall, Gerry Smith, Brent Anderson, Kaury

Jones,
    Jennifer Payne, Yves Piette, Chad LePerle, Fran Crowe, J.

Birmingham,
    Jane Doe, John Doe, Aaron MacMillan, and its Retirees

Brad
    Filman and Norm Shaw, the Attorney General of Ontario, and

James A. Hughes

Defendants (
Appellant
)

Heather MacKay and Farzin Yousefian, for the appellant

Gerrit Kukemueller, acting in person

Jacki Kukemueller, acting in person

Heard and released orally:  June 1, 2016

On appeal from the order of Justice Laura Bird of the Superior
    Court of Justice, dated July 13, 2015.

ENDORSEMENT

[1]

We allow the appeal even though the action has been discontinued, in
    order to clarify the law.  Section 8 of the
Ministry of the Attorney
    General Act
, R.S.O. 1990, c. M.17
gives individual Crown Attorneys immunity from being named personally in an
    action or proceeding for damages alleging prosecutorial misconduct, and
    substitutes the Attorney General as the proper defendant.

[2]

The motion judge erred in finding s. 8 was in force in 1990. In fact, it
    came into force on December 15, 2009.  There is no reason to doubt the
    effectiveness of s. 8 of the
Act
. The cases on which the motion judge relied
    to come to the opposite conclusion and dismiss the appellants motion,
    including
Kvello

v. Miazga
, 2009 SCC 51, [2009] 3 S.C.R. 339, all
    predated s. 8s enactment.

John Laskin J.A.

P. Lauwers J.A.

L.B. Roberts J.A.


