Artificial Intelligence: Efficiency v. Dangers of Cutting Corners
It’s hard to disagree that technological improvements have made positive contributions to the legal profession. Notwithstanding the lists of drawbacks and trade-offs readily argued by those who enjoyed spending two nights at a Best Western after a short flight to the Sault, virtual hearings and examinations, cloud storage and drop boxes, among many other innovations, have brought cost savings and efficiencies that clients appreciate. In the search for greater efficiency, the buzzword is now “AI”.
In a few short years, we’ve shifted from trying to get seasoned lawyers to stop printing every email they get and give Zoom a chance, to grumblings about how AI will be the end of solicitor work, and witnessing barristers embarrass themselves by handing off the reigns to the new tech with too much enthusiasm.
Nowadays, we have at least one presentation on Artificial Intelligence and the Law at every conference, summit, and symposium. AI may have the potential to better our practice, but the challenges are similar to the challenges we’ve always faced with learning a new language or to play a musical instrument.
It takes time, resources, commitment and a “beginner’s mind” which includes a willingness to make mistakes. I am not sure how much tolerance there can be for the latter, in a profession that is grounded in reliability and accountability. It’s one thing to use CanLII’s AI Analysis to preview a case before reading it through. It’s a whole other story to ask AI to draft a factum. It will take to time to establish best practices, however, as we’ve seen in recent decisions, lawyers are taking risks and giving us clear examples of pitfalls to avoid.
In Ko v. Li, 2025 ONSC 2766, Justice Myers addressed what he suspected to have been possible “artificial intelligence hallucinations” in the applicant’s factum. The factum, all of which was, as we know, “respectfully submitted”, included cases which could not be found, with hyperlinks to cases which had nothing to do with the matter at hand, and descriptions of case finding which were the opposite of what the cited cases actually held.
Justice Myers ultimately ordered the applicant’s counsel to show cause why she should not be cited for contempt of court. Moreover, the decision embarrassingly took the time to list some of a lawyer’s arguably obvious duties, including:
All lawyers have duties to the court, to their clients, and to the administration of justice.
It is the lawyer’s duty to faithfully represent the law to the court.
It is the lawyer’s duty not to fabricate case precedents and not to miscite cases for propositions that they do not support.
It is the lawyer’s duty to use technology, conduct legal research, and prepare court documents competently.
It is the lawyer’s duty to supervise staff and review material prepared for her signature.
It is the lawyer’s duty to ensure human review of materials prepared by non-human technology such as generative artificial intelligence.
It 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.
It is the litigation lawyer’s most fundamental duty not to mislead the court.
In Zhang v Chen, 2024 BCSC 285 (CanLII), Justice Masuhara stated:
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.
In a seemingly more lenient approach in the criminal law context, Justice Kenkel in R. v. Chand, 2025 ONCJ 282, looked past “numerous and substantial” errors, including a citation of a fictitious case, and several citations that led to unrelated civil cases, to conclude the trial in a way that was fair to both parties. He noted that the case likely turned on fact and credibility, not legal points; however, he did order that counsel personally prepare a new set of defence submissions within guidelines enumerated in the direction.
The silver lining of the conduct of counsel in the cases cited is that the courts’ commentary on behaviour and errors highlights for the rest of the legal community the boundaries of the available technology. There is good reason for the old adage about the practice of law being a big ship that’s slow to change course. These decisions that address lawyers’ use of AI are a useful cautionary guide as we continue to evolve our practice.