Verify and Disclose AI Use – Requirements from the Federal Court
In recent years, the integration of Artificial Intelligence (AI) into legal practices has revolutionized various aspects of the profession, from legal research to drafting documents. However, this technological advancement has also introduced challenges, particularly concerning the accuracy and reliability of AI-generated content. The Federal Court of Canada has addressed these challenges by mandating the disclosure of AI usage in legal submissions. This article delves into the Federal Court's requirements, examines a pertinent case study, and offers guidance on compliance.
The Federal Court's Mandate on AI Disclosure
On December 20, 2023, the Federal Court issued a Notice to the Parties and the Profession regarding the use of artificial intelligence in court proceedings. This directive requires parties to inform the Court and other parties if they have used AI to create or generate new content in preparing a document filed with the Court. Specifically, the first paragraph of any such document must disclose that AI was used to create or generate that content. Additionally, counsel and parties are expected to verify any AI-related content, ensuring that there is a "Human in the loop" to confirm accuracy and reliability. (bereskinparr.com)
Case Study: Wael Mostafa Aly Hussein et al. v. The Minister of Immigration, Refugees and Citizenship
A notable instance highlighting the importance of this mandate is the case of Wael Mostafa Aly Hussein et al. v. The Minister of Immigration, Refugees and Citizenship (2025 FC 1060). In this case, the Applicants' counsel utilized Visto.ai, an AI legal research tool tailored for Canadian immigration and refugee law practitioners, to prepare submissions. However, the counsel failed to disclose the use of AI until after multiple directions from the Court. Upon disclosure, it was revealed that the AI tool had "hallucinated" two non-existent cases and misrepresented the proper test for admitting new evidence on judicial review. Associate Judge Catherine Moore emphasized the necessity of declaring AI usage and ensuring human verification of AI-generated content, stating that the Court cannot be expected to "spend time hunting for cases which do not exist or considering erroneous propositions of law."
Implications of Non-Disclosure
The Federal Court's decision underscores the critical importance of transparency and accuracy in legal proceedings. Non-disclosure of AI usage can lead to significant repercussions, including:
- **Erosion of Trust:**Failure to disclose AI usage can undermine the integrity of the legal process and erode public trust in the judiciary.
-**Potential Sanctions:**Courts may impose penalties on parties that do not comply with disclosure requirements, as seen in the aforementioned case.
-Increased Scrutiny: Undisclosed AI usage may lead to heightened scrutiny of legal submissions, potentially delaying proceedings and increasing costs.
Best Practices for Compliance
To align with the Federal Court's requirements and uphold the integrity of legal proceedings, practitioners should adhere to the following best practices:
1. Proactive Disclosure
At the outset of preparing any document for court submission, assess whether AI tools have been utilized in its creation. If AI has been employed, disclose this in the first paragraph of the document, specifying the AI tool used and the extent of its involvement.
2. Human Verification
Ensure that all AI-generated content is thoroughly reviewed and verified by a qualified human to confirm its accuracy and relevance. This process, often referred to as having a "Human in the loop," is essential to prevent the dissemination of erroneous information.
3. Documentation and Record-Keeping
Maintain detailed records of AI usage, including the specific tools employed, the content generated, and the verification process undertaken. This documentation can serve as evidence of compliance with the Court's directives.
4. Training and Awareness
Regularly educate legal teams about the implications of AI in legal practice and the importance of disclosure. Fostering a culture of transparency and responsibility is crucial in adapting to technological advancements.
Conclusion
The Federal Court's mandate on disclosing AI usage in legal submissions is a pivotal step towards ensuring the accuracy, reliability, and integrity of the legal process in the age of artificial intelligence. By embracing transparency and adhering to the prescribed guidelines, legal practitioners can navigate the evolving landscape of AI in law while upholding the principles of justice and professionalism.
