Reliance on artificial intelligence: Could it stymie the growth of law?

Law360 Canada (October 8, 2024, 12:23 PM EDT) --

Margot Davis

Regardless of one’s personal view of the topic, it is undeniable that artificial intelligence (AI) will impact the future of law, as it will much of the rest of society.

AI has some obvious benefits, including quickly performing everyday, time-consuming tasks like drafting an email, organizing information for in-firm use, or locating particular words or phrases. But the widespread use of AI also presents some serious challenges for lawyers and the courts. A commonly discussed concern is AI’s use of non-existent cases.  

With AI as a growing factor, some Canadian courts have issued practice directions and some law societies have provided commentaries about it. Often, these practice directions require parties to disclose their use of AI.

AI presents one particular concern that has received little attention and will be difficult for regulators, courts and tribunals to address.  AI could hinder the court’s recognition of new torts and in turn, disadvantage plaintiffs.

Throughout the 2010s and 2020s, Canadian courts have recognized several new torts often related to novel situations that, ironically, technology presented. Where existing remedies could not provide adequate redress, courts cautiously recognized new torts. A brief summary is provided.

On Jan. 18, 2012, the Court of Appeal for Ontario recognized the tort of “intrusion upon seclusion” in Jones v. Tsige, 2012 ONCA 32, saying the particular situation and presumably similar situations “cry out for a remedy.” 

To provide a civil remedy to address the non-consensual disclosure of intimate images, a problem exasperated by the Internet, the Ontario Superior Court of Justice, on Nov. 2, 2018, recognized a tort of “public disclosure of private facts” in Jane Doe 72511 v. N.M., 2018 ONSC 6607.

With online harassment being a major societal issue and existing torts being inadequate to address, it Ontario Superior Court, on Jan. 28, 2021, recognized the “tort of Internet harassment” in Caplan v. Atas, 2021 ONSC 670. 

A critical area where the growth of AI will inhibit the recognition of new torts is pleadings. AI does not have the same creativity and originality as the human mind, at least not yet. If counsel is relying on AI in the drafting of pleadings, it would be highly unlikely that it could formulate an unrecognized but not unreasonable tort.

Pleadings play a crucial role in the recognition of new torts. While it must be emphasized that courts do not recognize new torts “willy nilly,” as stated in Jane Doe, a court, at the very least, cannot grant something that remains unpleaded.

For example, in Jones, the Court of Appeal for Ontario, when determining whether an intrusion upon seclusion tort should be recognized, explicitly stated: “There are also several Ontario cases in which the trial judge refused to strike pleadings alleging the tort of invasion of privacy as disclosing no cause of action.” 

Additionally, AI’s research is often perfunctory and sometimes just plain wrong. Even if counsel is relying on AI solely for research in drafting pleadings, it could miss academic writings, torts from other common-law jurisdictions and comments from past courts regarding torts that are unrecognized but well-suited to a client’s situation. These sources might encourage counsel to consider unrecognized torts and plead them. Additionally, counsel might cite these sources in written submissions further along in the case. For example, the Ontario Superior Court of Justice in Jane Doe stated:

[85] Parliament's criminalization of the publication of an intimate image without consent recognizes that this behaviour is highly offensive and should give rise to a civil remedy for a person who suffers damages as a result of it. The only question is how this is best accomplished.

[86] I conclude that the best way of fashioning a civil remedy is to adopt the tort of public disclosure of private facts in Ontario. In doing so I rely on the same reasoning that led the Court of Appeal to recognize the related tort of intrusion on seclusion in Jones v. Tsige. 

Some might contest that AI impairing the recognition of new torts is not the most drastic impact of AI. However, a hindrance in recognizing new torts goes to much broader principles including advocacy for clients, being a competent lawyer and even the evolution of law.

Arguing a currently unrecognized tort, that does have substantial grounding, goes to being a good advocate and being a competent lawyer. If current torts do not provide redress for a client, a lawyer should be considering reasonable, unrecognized torts that do.

A frequently cited attribute of the common-law system is its ability to continuously evolve. New torts could address new challenges. What is particularly ironic is a new technology, which itself might produce dilemmas that “cry out for a particular remedy,” could stymie the development, growth and evolution of new torts and therefore the law more broadly.

Margot Davis is a 2018 call and practises at Stern Landesman Clark. Davis has a bachelor of science in psychology. Her practice area is broad, including criminal law, some civil litigation and professional regulation. She is the co-author of two books.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.   

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