7180, 39 W.C.B. (2d) 540 (C.A.); Trillium Power Wind Corp. v. Ontario (Ministry of
Natural Resources) (2013), 117 O.R. (3d) 721,  O.J. No. 5117, 2013 ONCA
683, 312 O.A.C. 367, 369 D.L.R. (4th) 90, 78 C.E.L.R. (3d) 57, 5 C.C.L. T. (4th) 179
Statutes referred to
Canadian Charter of Rights and Freedoms
Crown Attorneys Act, R.S.O. 1990, c. C.49, s. 11 [as am.]
Ministry of the Attorney General Act, R.S.O. 1990, c. M.17, s. 8 [as am.]
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 21
APPEAL from the order of the motion judge dismissing a motion
to strike a cross-claim.
Sunil Mathai and Heather Burnett, for defendants (appellants).
Stuart Zacharias, for Durham Regional Police Services Board,
Leon Lynch, John Johnson Allan, Cindi Bradley, Daniel Anthony
Denyer, Jim Burrows, Jeff Kennedy, David Kimmerly and Dianne
Jennings, respondents on appeal.
Kevin McGivney, for York Regional Police Services Board and
YRP #1 defendants.
The judgment of the court was delivered by
SWINTON J.: —
 The Attorney General for Ontario, Michael Hill and John
Scott (the “appellants”) appeal, with leave, from the order of
Matheson J. dated November 29, 2016 [Smith v. Ontario, 
O.J. No. 6163, 2016 ONSC 7222 (S.C.J.)] dismissing, in part, their
motion to dismiss the cross-claim of the Durham Regional Police
Services Board and police officers Leon Lynch, John Johnson
Allan, Cindi Bradley, Daniel Anthony Denyer, Jim Burrows, Jeff
Kennedy, David Kimmerly and Dianne Jennings (the “
respondents”). The question in this appeal is whether it is plain and obvious that the respondents’ cross-claim will fail, either because of
prosecutorial immunity at common law or because the appellants
owe no duty of care in tort to the respondents.
 For the reasons that follow, I would allow the appeal on the
basis that it is plain and obvious that the respondents’ cross-claim will fail because of common law prosecutorial immunity.
 This action arose out of an investigation by Durham
Regional Police with respect to a cold case murder file. The murder