The facts matter. Perhaps not always, at least in the court of public opinion. But in a court of law, they reign supreme—no matter how unfortunate those facts may be for counsel.
Justice Myers of the Ontario Superior Court provided a stark reminder of this principle in a decision released May 20 in Ko v. Li (2025 ONSC 2965). As we recapped previously, Justice Myers had ordered counsel, who had relied on AI-hallucinated cases in both a factum and oral submissions before him, to attend for a show cause hearing to determine whether or not she should be held in contempt for violating Rule 4.06.1 (2.1) of the Rules of Civil Procedure, which requires counsel to certify the authenticity of cited authorities.
In his May 20 decision, Justice Myers reveals the steps taken by that counsel to address the Court's concerns:
- Prior to the show cause hearing scheduling conference, impugned
counsel:
- provided a letter to the Court confirming Justice Myers' suspicions that her factum and submissions had cited fake cases hallucinated by ChatGPT, and apologizing for the mistake;
- committed to complete CPD training in legal ethics and technology; and
- apologized for her "serious lapse in judgment" and took full responsibility
- At the show cause hearing itself – and despite a prior reminder from Justice Myers that contempt hearings are criminal proceedings, and that she was entitled to, and encouraged to seek, representation – counsel said that she had not retained representation because she felt that addressing her mistake openly and honestly would forestall sanctions from the court.
- She then asked to make a statement, during which she again apologized for her mistake and explained that she relied on her staff to help her prepare certain filings on cases such as this one—cases where her client can offer very little remuneration but which she takes due to a sense of deep attachment to her community.
Justice Myers determined that counsel, by so clearly defenestrating herself in open court, had "purged any possible contempt of court that could be found." He found it compelling that counsel acknowledged that her "error was not delegating the factum or using generative AI to assist in drafting... [but] when she signed, delivered, and used the factum without ensuring that the cases were authentic."
Near the end of the decision, Justice Myers articulates the stakes of the intersection of law and AI, and reminds us that the essential role of humans: sifting fact from fiction:
"There had to be someone who was going to be the first lawyer to file AI hallucinations here. It was likely to be someone so junior as to over-estimate the infallibility of AI, or someone so senior as to not really yet understand its fallibility. [Counsel] has suffered a public shaming near the end of an unblemished career. The denunciation and deterrent effect produced her immediate and forthright response in a manner far beyond any reasonably expected impact of a small fine."
His Honour elected, having delivered his clear message, to "withdraw the show cause order and deem it satisfied."
To view the original article clickhere
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.
