On December 20, 2023, the Federal Court (Court) published a notice on the use of artificial intelligence (AI) in proceedings (Notice) and interim principles and guidelines on the Court’s own use of AI (Policy).

Notice mandates AI Declaration from litigants

Declaration requirement. The Court now expects parties to proceedings before the Court to inform it, and each other, if they have used AI to create or generate new content in preparing a document filed with the Court.

  • The Declaration. If AI was used to create or generate new content in preparing a document filed with the Court, the document must include — as the document’s first paragraph — a declaration such as: “Artificial intelligence (AI) was used to generate content in this document”.
  • Types of documents. This requirement applies to all documents that are (i) submitted to the Court and (ii) prepared for the purpose of litigation. It does not apply to Certified Tribunal Records submitted by tribunals or other third party decision-makers.
  • Types of AI. A Declaration is only required for content generated by certain forms of AI, defined as “a computer system capable of generating new content and independently creating or generating information or documents, usually based on prompts or information provided to the system”. The Notice does not apply to AI that cannot generate new content. For example, AI that only follows pre-set instructions (e.g., document editing or voice recognition).

Principles on the use of AI. While recognizing the potential benefits of AI, the Court also underscores the risks associated with “deepfakes” and potential fabrication of legal authorities. To that end, the Court identified two key principles on the use of AI by litigants:

  • Caution. The Court urges caution when using legal references or analysis created by AI, emphasizing that it is crucial to use well-recognized, reliable sources when referring to jurisprudence, statutes, policies, or commentaries (e.g., official court websites and CanLII).
  • “Human in the loop”. The Court also emphasized the importance of verifying the content in documents generated by AI.

Court Policy commits to consultation on use of AI

While the Court’s Notice is directed to parties and the legal profession, its Policy addresses the Court’s own use of AI. Key topics addressed in the Policy include:

  • Piloting and consultation. Under the Policy, the Court will begin investigating and piloting potential uses of AI for internal administrative purposes. However, it will not use AI (and more specifically automated decision-making tools) in making its judgments and orders, without first engaging in public consultation. The Court also commits to consulting with stakeholders before implementing any specific AI use by the Court that may impact the profession or public.
  • Benefits, risks, and principles. The Court’s Policy recognizes potential benefits of AI (e.g., analyzing large amounts of data) and potential risks (e.g., undermining public confidence in the administration of justice). Potential use of AI by the Court and its law clerks will be guided by the principles of accountability, respect of fundamental rights, non-discrimination, accuracy, transparency, cybersecurity, and “human in the loop” (i.e., verifying results of AI-generated outputs).

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