Citation
Ko v Li 2025 ONSC 2766 (Meyers J, Ont. S.C.J.)
Overview
This decision is a significant addition to the fast-developing jurisprudence on lawyers’ duties when using generative AI in legal practice. In Ko v Li, the Ontario Superior Court confronted a factum containing non-existent authorities, incorrect hyperlinks, and misstatements of case holdings. Meyers J held that such conduct may amount to contempt in the face of the court, and ordered counsel to show cause why she should not be cited.
Facts Relevant to the AI Issue
Counsel for the applicant filed a factum in support of a motion to set aside a divorce order and to remove an estate trustee. The factum:
- Had no page or paragraph numbering.
- Contained citations to cases that did not exist, were mismatched to hyperlinks, or stood for the opposite proposition advanced.
- Included authorities that, when checked via CanLII, Westlaw, Lexis, and Google, could not be located.
- It was relied upon again in oral submissions, despite counsel being unable to produce the cited cases.
When questioned, counsel indicated she was unsure whether her office had used generative AI (e.g., ChatGPT) in preparing the factum.
Key Errors Identified
Meyers J discovered:
- “Alam v Shah, 2023 ONSC 1772” hyperlink actually opened a commercial real estate case (Gatoto v 5GC Inc).
- “DaCosta v DaCosta, 2010 ONSC 2178” link produced a CanLII 404 error.
- “Johnson v Lanka, 2010 ONSC 4124” was cited for a principle directly contradicted by the actual judgment.
- “Meschino Estate v Meschino, 1998 CanLII 14734” hyperlink redirected to an unrelated wrongful dismissal matter (Antonacci).
The judge described these issues as consistent with AI-generated hallucinations.
Duties of Counsel Emphasised
Meyers J restated several core professional obligations, including:
- The duty to faithfully and accurately represent the law.
- The duty not to fabricate or misquote authorities.
- The duty to competently use technology and supervise staff.
- The duty to conduct a human review of materials generated by AI.
- The fundamental duty is not to mislead the court.
The judge stressed that “at its barest minimum,” counsel must read the cases they rely upon and must not submit authorities that do not exist or contradict their submissions.
Comparative and Prior Authority
The court referenced:
- Zhang v Chen, 2024 BCSC 285 — holding that citing fake cases is an abuse of process akin to making a false statement to the court.
- US federal decisions, notably Benjamin v Costco Wholesale Corp, highlight similar procedural issues arising from AI hallucinations.
Contempt in the Face of the Court
Applying R v Cohn (1984), the court noted that knowingly or negligently presenting non-existent authorities capable of obstructing the administration of justice may amount to contempt.
Meyers J ordered counsel to show cause why she should not be cited, emphasising procedural fairness and the presumption of innocence.
Significance
Ko v Li is a cautionary decision for practitioners globally:
- Courts are increasingly taking a firm stance on AI-related misconduct.
- Reliance on AI-generated citations without verification may expose counsel to severe professional consequences, including contempt proceedings.
- Human review remains essential, and courts will enforce the standard vigorously.
Takeaway
This case stands as one of the most explicit judicial warnings to date: AI is not an excuse. Lawyers must verify citations. Failure to do so can be professionally catastrophic.
Source:Canlii
Leave a Reply