What happens when counsel misuses artificial intelligence ("AI") in the courtroom? A recent family law decision from the Ontario Superior Court of Justice, Ko v. Li,1 ("Li") offers a cautionary note to any lawyer considering using AI in their practice.
AI: "A serious issue that arose at the hearing"
Li concerned a series of motions in a family law / estates dispute, the merits of which are not relevant to the substance of this article.
The Motion Judge dealt with "a serious issue that arose at the hearing" with respect to the suspected use of AI by the applicant's counsel. In her oral submissions, counsel for the applicant referred the Motion to two cases in the applicant's factum to support her client's arguments, which were incorrectly cited and did not exist on CanLII (a public database of Canadian legal court decisions). In the written factum, counsel for the applicant also incorrectly cited two additional cases. In total, two of the cases cited by the applicant's counsel were unable to be found on CanLII, Westlaw, Quicklaw or Google.
The Motion Judge went on to state that the problematic factum drafted by the applicant's counsel seemed similar to cases in which people have used AI to draft submissions:
It appears that [counsel's] factum may have been created by AI and that before filing the factum and relying on it in court, she might not have checked to make sure the cases were real or supported the propositions of law which she submitted to the court in writing and then again orally.
The Court reminded lawyers thata "litigation lawyer's most fundamental duty is not to mislead the court" and that lawyers considering using AI in their practice to only do so with extreme care. According to the Motion Judge, "[I]t should go without saying that it is the lawyer's duty to read cases before submitting them to a court as precedential authorities. At its barest minimum, it is the lawyer's duty not to submit case authorities that do not exist or that stand for the opposite of the lawyer's submission." The Motion Judge ordered the applicant's counsel to "show cause why she should not be held in contempt of court." The costs of the motion were reserved pending the outcome of the show cause proceeding.
The Show Cause Hearing
In a further Endorsement addressing the "serious issue that arose at the hearing," the Motion Judge found that counsel "forthrightly admitted the facts, apologized, and proposed positive steps to address the issues" at a scheduling conference. The Motion Judge found that the scheduling conference sufficiently accomplished the purposes of addressing contempt in the face of the court at a show cause hearing. The order for the show cause hearing was dismissed on the condition thatcounsel fulfill her commitment to take Continuing Professional Development courses and that she not bill her client for the research, factum writing and attendance at the motion.
It is worth noting that the Motion Judge identified that the factum submitted by counsel did not comply with Rule 4.06.1 (2.1),2 which requires that, "a factum shall include a statement signed by the party's lawyer, or on the lawyer's behalf by someone the lawyer has specifically authorized, certifying that the person signing the statement is satisfied as to the authenticity of every authority cited in the factum." As stated by the Motion Judge, Rule 4.06.1 (2.1) was "enacted specifically to remind counsel of their obligation to check the cases cited in their legal briefs to ensure they are authentic" and ensure lawyers are not relying on factums generated by AI without verifying citations' accuracy.
The Motion Judge also highlighted that counsel's error was not using generative AI to assist in drafting the factum but rather her failure to ensure the cases cited were authentic before signing and submitting it to the Court.
The Use of AI in Canadian Courts
By way of background, certain courts in Canada have issued practice directions and notices to the profession setting out obligations for individuals using materials that have been developed using AI. The Federal Court of Canada issued an updated notice regarding the use of AI in Court proceedings, effective as of May 7, 2024. This direction requires counsel at the Federal Court to disclose the use of AI in the summary methodology. A declaration is expressly required when the role AI plays in the preparation of materials for the purpose of litigation resembles that of a co-author and must be made in the first paragraph of the document in question. The notice of the federal court cautions lawyers using legal references or analysis created or generated by AI in documents submitted to the Court. Further, to ensure accuracy and trustworthiness, it is essential for lawyers to check documents and materials generated by AI. The federal court urges verification of any AI-created content. The Ontario Superior Court of Justice does not have any such requirement and the appellant's factum did not contain any reference to counsel's use of AI in the preparation of the material.
Additionally, in April 2024, the Law Society of Ontario released a White Paper titled, "Licensee use of generative artificial intelligence."3 This white paper provides guidance for licensees on how the Rules of Professional Conduct and Paralegal Rules of Conduct apply to the delivery of legal services empowered by generative AI. The Law Society of Ontario reminds licensees as a best practice to verify the outputs generated by AI. "Licensees are responsible for ensuring their work products are competently produced. Generative AI is a tool that can assist a licensee in producing such product; however it is the licensee's express obligation to ensure that it meets that standard."
While AI may offer substantial benefits to lawyers when drafting materials for the purposes of litigation, it is clear that lawyers must still proceed with caution when using such technology to ensure their duties to the Court and to the administration of justice are fulfilled.
Footnotes
1. Ko v. Li, 2025 ONSC 2766.
2. Rules of Civil Procedure, RRO 1990 Reg 194.
3. Law Society of Ontario, "Licensee Use of Generative Artificial Intelligence", April 2024, available at: https://lawsocietyontario-dwd0dscmayfwh7bj.a01.azurefd.net/media/lso/media/lawyers/practice-supports-resources/white-paper-on-licensee-use-of-generative-artificial-intelligence-en.pdf.
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