Court of Appeal for Ontario
Citation: Kukemueller v. Ontario (Community Safety and Correctional Services), 2016 ONCA 451 Date: 2016-06-08 Docket: C60869
Before: 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)
Counsel: 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 appellant’s motion, including Kvello v. Miazga, 2009 SCC 51, [2009] 3 S.C.R. 339, all predated s. 8’s enactment.
“John Laskin J.A.”
“P. Lauwers J.A.
“L.B. Roberts J.A.”