Written by: Naa Lansana
The legal landscape in recent weeks has been abuzz with commentary on artificial intelligence (AI) hallucinations (fake cases generated by AI), and the negative attention that can ensue for lawyers when AI goes rogue. In the endorsement of Justice FL Myers released on May 6, 2025 following a motion heard in Ko v. Li, 2025 ONSC 2766, inadequacies of artificial intelligence were laid bare. A show cause hearing was scheduled for counsel as a result of the peculiar circumstances of non-existent and misapprehended cases raised in the motion. Ultimately, the hearing was withdrawn by the court during a subsequent scheduling conference, but not before the grave impact of the blunder reverberated across the legal community.
The motion at bar dealt with a number of disputes, including that of setting aside a divorce order; an issue raised by the applicant’s counsel. To support her position, counsel cited cases in her factum that regrettably had no basis in reality. The first hyperlink provided for the case Alam v. Shah, 2023 ONSC 1772 re-directed to the case of Gatoto v. 5GC Inc., 2023 ONSC 1772 which had no bearing on the matter at hand. Rather, the latter case addressed a commercial real estate issue. The hyperlink for the second case proposed, DaCosta v. DaCosta, 2010 ONSC 2178 redirected to CanLII’s error page. Neither of the cases cited appeared to exist.
On the subject of the court’s authority to remove an estate trustee, cases submitted during the motion to support same proved equally problematic. Both Johnson v. Lanka, 2010 ONSC 4124 and Meschino Estate v. Meschino, 1998 CanLII 14734 (ON SC) were cited as precedent cases in which estate trustees were removed by the court due to negative conduct. In the former case, the opposite transpired, with the court dismissing the application to remove the estate trustee, and in the later, the hyperlink provided redirected to Antonacci v. Great Atlantic & Pacific Co. of Canada, 1998 CanLII 14734 (ON SC); a trial decision regarding wrongful dismissal.
The court suspected, but did not firmly conclude that the errors were due to the factum being drafting by generative AI. The court then laid out various duties that counsel owes, not only to their clients, but critically to the courts and the administration of justice at large; admonishing among other crucial responsibilities, that it is paramount that a lawyer not mislead the court. The court thus determined that a show cause hearing to address why the applicant’s counsel should not be held in contempt for violating her duties was needed. To this end, Justice FL Myers arranged a scheduling conference to address the show cause hearing proceeding.
Many in the legal community were keenly observing the developments in this case, particularly the anticipated outcome of the contempt hearing. However, following the scheduling conference, Justice FL Myers issued an endorsement in Ko v. Li, 2025 ONSC 2965, which indicates that the show cause hearing has been withdrawn.
Several factors contributed to this decision. Notably, the applicant’s counsel promptly admitted to her staff’s use of the ChatGPT AI platform in drafting the factum, took responsibility for the inaccurate submissions and proactively took steps to rectify the situation. Additionally, the extensive media coverage, both within legal circles and the general public, brought considerable attention to the counsel’s actions. This notoriety has, in effect, already achieved the objectives of a show cause hearing, which include upholding the court’s respect and serving as a denunciation and deterrent against such misconduct. Justice FL Myers makes it clear that it is not the use of AI that is problematic, but rather failure to ensure the accuracy of its contents.
It may be that in a time to come, when machine learning matures, AI hallucinations will be a distant memory; and cases sourced through generative AI will all be real, not apparitions or figments of the machine’s imagination. For now, lawyers, judges and the justice system at large must contend with this very real limitation that has the potential to negatively and significantly impact the reputation of the justice system.
