Canadian courts and law societies, alike, are faced with an ever-evolving challenge: straddling the line between recognizing the potential benefits of emergent generative artificial intelligence (GenAI), while balancing the associated risks of using this technology. Principle to these associated risks is the ability of GenAI to "hallucinate" (i.e., generate incorrect information).
This article canvasses developments in respect of: (1) practice directions issued by different Canadian courts on the use of GenAI in court filed materials; (2) notices on the courts’ own use of GenAI; and (3) guidelines issued by various Canadian law societies on the use of GenAI in the legal profession.
Various practice directions and guidelines have been issued over the last several months. Following from our previous blog, New Practice Directions Consider Artificial Intelligence in Court Submissions, a common theme of these reference materials is: (1) the importance of a “human in the loop” for verifying the outputs of any GenAI; and (2) in certain jurisdictions, an additional disclosure requirement if GenAI is used to prepare court filed materials.
1. Notices or Practice Directions Issued by Canadian Courts on Use of GenAI
The following Canadian courts have issued notices and/or practice directions relating to the use of GenAI in court filed materials:
2. Guidance on Court’s Own Use of GenAI
The Federal Court has also issued guidance on its own use of GenAI:
3. Law Society Guidelines on Use of GenAI
In addition to the notices and practice direction issued by various courts, the following law societies have also issued guidance on the use of GenAI in the legal profession:
While not all law societies have issued practice guidelines on the use of GenAI, the code and rules of professional conduct adopted by most law societies incorporates a technology competence requirement. This requirement necessitates lawyers understand the capabilities and limitations of AI (and GenAI) tools, prior to using these tools in their practice. The requirement for technological competence was initially adopted in 2019 by the Federation of Law Societies of Canada in the Model Code of Professional Conduct,20 and is now incorporated in the code and rules of professional conduct of Alberta,21 Ontario,22 Manitoba,23 Saskatchewan,24 Yukon,25 Northwest Territories,26 and Nova Scotia27.
4. AIDA
The federal government has tabled Bill C-27: An Act to enact the Consumer Privacy Protection Act, the Personal Information and Data Protection Tribunal Act and the Artificial Intelligence and Data Act and to make consequential and related amendments to other Acts.28 One component of this legislation is the Artificial Intelligence and Data Act (AIDA) which seeks to regulate "high impact AI systems". As the companion document released by Innovation, Science and Economic Development Canada indicates, the government will consider a list of factors in determining which AI systems would be considered "high impact" under AIDA29:
- evidence of risks of harm to health and safety, or a risk of adverse impact on human rights, based on both the intended purpose and potential unintended consequences;
- the severity of potential harms;
- the scale of use;
- the nature of harms or adverse impacts that have already taken place;
- the extent to which for practical or legal reasons it is not reasonably possible to opt-out from that system;
- imbalances of economic or social circumstances, or age of impacted persons; and
- the degree to which the risks are adequately regulated under another law.
In this light, it may be possible that certain AI used in the preparation of court submissions could be deemed to be "high impact AI systems," and thus subject to AIDA. If subject to AIDA, organizations which manage use of these AI systems may be subject to certain obligations, including ensuring adequate monitoring and human oversight of the system use and output, and intervening as needed.
5. Additional Developments
Following a number of similar cases coming out of US courts, the British Columbia Supreme Court recently addressed a child custody case where a lawyer filed court submissions which included fictitious cases that were suggested by ChatGPT30. The court in this instance held31:
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.
Due to the "additional effort and expense were incurred" by the insertion of these fictitious cases, the court held the lawyer personally responsible for such expenses. The lawyer was also ordered to: (1) review all of her files that are before the court within 30 days; and (2) advise opposing parties and the court of any filed materials which contain any case citations or summaries that were obtained through GenAI tool.
6. Conclusion
As highlighted in our previous blog, New Practice Directions Consider Artificial Intelligence in Court Submissions, these guidelines and practice directions demonstrate a continuing trend by Canadian courts and law societies to regulate the use of GenAI by the legal profession. As the court held in Zhang v. Chen32:
As this case has unfortunately made clear, generative AI is still no substitute for the professional expertise that the justice system requires of lawyers. Competence in the selection and use of any technology tools, including those powered by AI, is critical. The integrity of the justice system requires no less.
It will be important for practitioners to monitor these and any new developments regarding GenAI given the significant implications associated with failing to do so.
1 https://albertacourts.ca/docs/default-source/qb/npp/tri-court-notice-to-profession-and-public---large-language-models.pdf?sfvrsn=713d5a82_7
2 https://www.fct-cf.gc.ca/Content/assets/pdf/base/2023-12-20-notice-use-of-ai-in-court-proceedings.pdf
3 https://www.fct-cf.gc.ca/Content/assets/pdf/base/FC-Updated-AI-Notice-EN.pdf
4 https://www.court.nl.ca/supreme/files/2023-10-12-Notice-to-Profession-and-General-Public-AI-Submissions.pdf
5 https://www.courts.ns.ca/sites/default/files/notices/Oct%202023/NSPC_Artificial_Intelligence_Oct_27_2023.pdf
6 https://www.manitobacourts.mb.ca/site/assets/files/2045/practice_direction_-_use_of_artificial_intelligence_in_court_submissions.pdf
7 https://coursuperieureduquebec.ca/fileadmin/cour-superieure/Communiques_and_Directives/Montreal/Avis_a_la_Communite_juridique-Utilisation_intelligence_artificielle_EN.pdf
8 https://www.yukoncourts.ca/sites/default/files/2023-06/GENERAL-29%20Use%20of%20AI.pdf
9 https://www.fct-cf.gc.ca/en/pages/law-and-practice/artificial-intelligence
10 https://www.lawsociety.ab.ca/resource-centre/key-resources/professional-conduct/the-generative-ai-playbook/
11 https://www.lawsociety.bc.ca/about-us/news-and-publications/e-brief/e-brief-july-2023/
12 https://www.lawsociety.bc.ca/Website/media/Shared/docs/practice/resources/Professional-responsibility-and-AI.pdf
13 https://educationcentre.lawsociety.mb.ca/wp-content/uploads/sites/2/2024/04/Generative-Artificial-Intelligence-Guidelines-for-Use-in-the-Practice-of-Law.pdf
14 https://lsnl.ca/artificial-intelligence-in-your-practice/
15 https://nsbs.org/wp-content/uploads/2023/12/short-guide-on-A.I.pdf
16 https://lawsocietyontario.azureedge.net/media/lso/media/lawyers/practice-supports-resources/white-paper-on-licensee-use-of-generative-artificial-intelligence-en.pdf
17 https://lawsocietyontario.azureedge.net/media/lso/media/lawyers/practice-supports-resources/generative-ai-your-quick-start-checklist.pdf
18 https://lawsocietyontario.azureedge.net/media/lso/media/lawyers/practice-supports-resources/8-best-practice-tips-for-using-generative-ai.pdf
19 https://www.lawsociety.sk.ca/wp-content/uploads/Law-Society-of-Saskatchewan-Generative-Artificial-Intelligence-Guidelines.pdf
20 Federation of Law Societies of Canada, Model Code of Professional Conduct, Section 3.1-2 commentary [4A] [4B].
21 February 27, 2020 Law Society of Alberta Code of Conduct Changes. See also Law Society of Alberta Code of Conduct, s 3.1-2 commentary [5],[6].
22 Law Society of Ontario, Rules of Professional Conduct, s 3.1-2 commentary [4A][4B].
23 Law Society of Manitoba, Code of Professional Conduct, s 3.1-2 commentary [4A][4B].
24 Law Society of Saskatchewan, Code of Professional Conduct 2023, s 3.1-2 commentary [4A][4B].
25 Law Society of Yukon, Code of Professional Conduct July 24, 2023, s 3.1-2 commentary [4A][4B].
26 Law Society of the Northwest Territories, Code of Professional Conduct March 16 2021, s 3.1-2 commentary [4A][4B].
27 Nova Scotia Barristers' Society, Code of Professional Conduct, s 3.1-2 commentary [4A][4B].
28 Bill C-27, An Act to enact the Consumer Privacy Protection Act, the Personal Information and Data Protection Tribunal Act and the Artificial Intelligence and Data Act and to make consequential and related amendments to other Acts, 1st Sess,44th Parl, 2021 (second reading completed by the House of Commons on 24 April 2023).
29 Canada, The Artificial Intelligence and Data Act (AIDA) – Companion document (last modified 13 March 2023).
30 Zhang v. Chen, 2024 BCSC 285, https://www.bccourts.ca/jdb-txt/sc/24/02/2024BCSC0285cor1.htm
31 Ibid at para. 42.
32 Ibid at para. 46.