The Shift to Digitization in the Canadian Legal System
Steps to modernize how lawyers and litigants interact with the courts were underway even before the pandemic. But when the pandemic effectively shut down the small claims courts and severely hampered the regular operation of the superior and appellate courts, there was a sudden urgency and need for innovation. For example, filing court documents was a challenge early in the pandemic as courts operated with limited counter staff. It was no longer possible to get a runner to head to the courthouse to file a motion record before a 4 p.m. deadline because process servers were, instead, having to line up first thing in the morning and wait all day to get things filed.
Thankfully, by August 2020, the province’s online court filing system (Civil Submissions Online) dramatically expanded. Where it could previously only be used to file a handful of basic pleadings, it could now be used to file and pay for virtually any type of court document. The Rules of Civil Procedure were also amended to authorize online filings. As of January 2021, service by email was finally allowed by the Rules (before this required consent or a court order). Litigants were now required to list their email addresses on all court documents, and all references to faxing documents were scrubbed from the Rules.
Impact of New Technology Use
The practical impact of these changes needs to be emphasized: a profession that relied on printing out letters and court documents only to sign them and then wait 20 minutes by the fax machine could now apply digital signatures, serve by email, and file online. As a result, for some lawyers, printing documents has become a thing of the past. In fact, save for rare occasions involving mail being sent to self-represented litigants, a lawyer could very well carry out an active litigation practice with just a laptop and an iPad and no need for a printer.
This digitization also took place in the courtroom thanks to the adoption of Thomson Reuters’ CaseLines platform, a cloud-based portal where all parties and court staff can upload, share, and access court documents for use during hearings and trials. After logging on, litigators can see their past and upcoming hearings, each of which is assigned a digital “bundle” where parties can upload evidence, submissions, and other documents. The platform has robust PDF viewing and screen-share capabilities, and courts now expect parties to use CaseLines for all civil hearings, whether virtual or in-person.
As with the prescription of any new technology or business process, successful adoption has varied. Numerous recent court decisions have admonished counsel for failing to follow practice directions about how documents should be named, organized, hyperlinked, and bookmarked.
There is also room for improvement on the courts’ side. For example, there is redundancy in the need to upload documents to CaseLines and file them on the Civil Submissions Portal. Counsel must follow a considerable list of steps to ensure that booked hearing dates are not lost due to administrative oversight.
The Start of Generative AI
The transformative generative AI wave initially caused much skepticism among lawyers, and rightly so. The idea that an algorithm could accurately replicate the complexity of legal analysis and reasoning was inconceivable. At its core, legal work requires great attention to detail and the ability to recognize nuanced interpretations and arguments, which initial large language models are not equipped to do. Yet, several AI tools proved very helpful to lawyers in other aspects of their practice, such as legal drafting and editing aids that improve the quality of written arguments.
In Toronto, litigators have become highly attuned to the way data analytics can assist in offering better client service by, for example, predicting the chances of success based on several factors, which may include the issues raised in a case, the practice area affected, the judge’s history on deciding similar issues, which party is seeking the remedy, or whether there was a dissent in the lower court. For example, a promising project that gained popularity in Ontario is Paul-Erik Veel’s Supreme Court of Canada Leave Project, which harnesses data analytics and AI to predict the likelihood of getting leave to appeal to the Supreme Court and the time it will take for the leave decision to be released.
Understanding the Risks and Benefits of AI
Despite the many benefits lawyers are reaping from the effective use of AI and technology in their practice, lawyers must exercise caution. The post-pandemic world has seen a surge of chat-based platforms (such as ChatGPT or tools tailored toward the legal profession like Harvey) that can engage in a conversation with anyone about anything. The danger—which some lawyers had to learn the hard way—is that these kinds of tools can provide seemingly logical but erroneous answers based on fabricated sources to any question. Faced with these risks and tasked with the duty to maintain the integrity of judicial proceedings, courts across Canada started issuing notices to the profession requiring a declaration to be made to the court for any AI-generated content submitted by a lawyer. For example, the federal court requires lawyers to issue a declaration if any content in the material submitted was directly provided by AI. The court clarified that this is only required where the role AI plays is akin to that of a co-author rather than a critic. It remains to be seen whether such a requirement will discourage lawyers from using AI and how this declaration will be considered.
In a recent case out of British Columbia, the court was critical of a lawyer who relied on cases that were subsequently discovered to have been fabricated by ChatGPT. Opposing counsel, who argued that the lawyer’s conduct was reprehensible and deserving of rebuke, sought an order for special costs personally against the lawyer. The court did not grant them because the lawyer was remorseful, and the court did not find an intent to deceive. However, the court cautioned that this was “alarming,” that it is “tantamount to making a false statement to the court,” and that it is now clear that “generative AI is still no substitute for the professional expertise that the justice system requires of lawyers.”
Although courts may be lenient as we remain at the precipice of the generative AI revolution, it is likely that in the coming years, courts in Canada will apply a much more stringent standard on legal professionals of all career stages. In fact, various provincial codes of professional conduct in Canada were amended to include technological competence as part of the standard of a competent lawyer. Most recently, on April 25, 2024, the Law Society of Ontario’s Futures Committee published a white paper providing guidance to licensees on the use of generative AI.
Legal Professionals Must Be Informed and Educated about the Risks of AI
When it comes to generative AI, it is crucial that legal professionals remain informed and educated about the risks of relying on AI. The integrity of the Canadian justice system and the reputation of lawyers throughout the country depends on it. On the other hand, it is equally important that practitioners and courts continue to embrace new ways of doing things and seek constant improvement. The hope is that the spirit of innovation galvanized by the pandemic continues to drive progress in the years to come. The industry should not again become content with the status quo, awaiting another seismic disruption to force it to catch up to modern life.
