On the issue of AI hallucinations in court filings, in amotion decisionin Ko v. Li (2025 ONSC 2766) released on May 6, 2025, Justice Myers of the Ontario Superior Court of Justice weighed in unequivocally on the appropriate use of AI.
The case involves an estates/family law application. Counsel for the applicant delivered a factum dated April 25, 2025 referencing several (apparently) reported decisions. During oral submissions, counsel referred to these cases to support her client's arguments. However, the motions judge determined that the hyperlinks in the Factum took him to one case that was unrelated to the facts at hand, and in the second instance, to an error message. The Judge conducted further searches for the cited cases, but was unable to find them. The judge directly asked counsel if her factum was prepared by AI. Counsel advised "that her office does not usually do so but that she would have to check with her clerk." Unfortunately, counsel was unable to provide the court citations to the cases cited in her factum or relied on in her oral submissions. Justice Myers identified this as "a significant issue".
Justice Myers stated, in his decision on the hearing, that "It is the lawyer's duty not to fabricate case precedents and not to mis-cite cases for propositions they do not support". He noted that counsel "may have committed grave breaches of her duties that may amount to contempt in the face of the court." He ordered the lawyer to show cause why she should not be cited for contempt.
Clearly, Justice Myers' decision stands for the strong proposition that, absent an explanation, the breach of a lawyer's duty to validate the authenticity of the cases they are citing to the Court, whether in written or oral submissions, and even if written by other members of the firm, will be taken very seriously.
This case serves as a cautionary tale for the legal community. Ethical considerations aside, a pre-requisite to the use of AI technology is building guardrails, processes, and policies around its use.
To view the original article click here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
