* This is not AI-generated.

The legal profession is a notoriously slow-progressing field. Just a few years ago, one of the primary modes of delivering documents and correspondence, aside from regular mail, was by fax machine. Developments have picked up significantly following the Covid-19 pandemic, with most civil appearances taking place online, document service and production via email, and the introduction of new platforms for court filing, viewing, and scheduling.

Another significant development that the legal field is grappling with is the use of artificial intelligence. Law societies and courts across the country have been publishing guidelines and practice procedures regarding the proper use of AI and where and when it can be safely and responsibly utilized. The recent decision of Ko v Li ONSC 2766 illustrates the risk that lawyers accept when they choose to use AI in their practices.

The decision by Justice Myers involved a motion for a family law matter in which counsel for the applicant delivered a factum that contained the law and argument that she would rely on and cite throughout her oral submissions. However, in the course of her oral submissions, and upon Justice Myers’ review of the caselaw cited, it became apparent that the citations were fake “hallucinations”. Justice Myers noted the obligations imposed upon legal practitioners, namely, to faithfully represent the law to the court, to not fabricate case precedents and not mis-cite cases for propositions that they do not support, to use technology, conduct legal research, and prepare court documents competently, to supervise staff and review material prepared for her signature, to ensure human review of materials prepared by non-human technology such as generative artificial intelligence, to read cases before submitting them to a court as precedential authorities, and “At its barest minimum, … not to submit case authorities that do not exist or that stand for the opposite of the lawyer’s submission”.

Justice Myers continued to reference the British Columbia case of Zhang v Chen, which addressed almost the exact same scenario, and in which Justice Masuhara wrote, “Citing fake cases in court filings and other materials handed up to the court is an abuse of process and is tantamount to making a false statement to the court. Unchecked, it can lead to a miscarriage of justice.”

On this basis, and rightfully so, Justice Myers was particularly concerned about the possibility of these errors becoming a common occurrence and found that in submitting the AI generated factum, the applicant’s counsel’s conduct fit the definition of contempt of court, being, “any word spoken or act done in, or in the precincts of, the court which obstructs or interferes with the due administration of justice or is calculated so to do.”

On his own initiative, Justice Myers ordered that the applicant’s counsel submit an explanation for the deficient factum and show cause why she should not be cited for contempt.

The decision sends an obvious and important message to legal practitioners to be cautious of AI use in their practices, although it is also important for clients to be aware of. Although the law and legal practice develop slowly, sometimes painstakingly so, the fundamental principles of justice and fairness are never displaced by more expeditious means of completing tasks like drafting, researching, summarizing, and so forth. Although artificial intelligence is developing and may improve to eliminate these “hallucinations”, as Justice Myers referred to them, inevitably, new concerns will arise, and it is the duty of lawyers to ensure that the risks associated with the use of AI are always balanced with the desired outcome, and either circumvented entirely or properly mitigated through responsible practice. As Justice Myers makes clear, there is no alternative to sound, responsible, and dutiful legal practice, whether that incorporates the use of AI or not.