Judge says counsel's breaches of duties relating to possible genAI use may amount to contempt
A judge ordered a lawyer to show cause why the Ontario Superior Court should not cite her for contempt in connection with a factum she presented, which might have exhibited “hallucinations” due to reliance on generative artificial intelligence.
The case of Ko v. Li, 2025 ONSC 2766, arose when a testator died unexpectedly in June 2024. His will named his son and daughter as his estate trustees and divided his estate equally between his two children, who were half-siblings.
The will left nothing to two women, who each claimed to be the testator’s wife when he died. The testator’s prior wife, who was the applicant in this case, and his later wife both resided in the matrimonial home.
In the present application, the applicant asked the court to invalidate her June 2020 divorce from the testator based on fraud or duress. She wanted to bring equalization and support claims against the estate, remove the daughter as a co-estate trustee, and require the later wife and her son to leave the family home.
The applicant alleged that she became a mother to the testator’s son after the testator brought him from Korea in 2014 and they all began living together as a family. She claimed she did not know about the 2020 divorce at the time.
The applicant explained that the testator made her sign documents – which turned out to be a divorce application and a sworn affidavit supporting the divorce – under the threat of death or her return to Korea.
The applicant argued that she continued residing with the testator and their son until 2023, when the testator threatened to kill her while waving a knife. The testator was charged and barred from returning home due to bail conditions. According to the son, after the imposition of this bar, the testator phoned him and instructed him to let the later wife enter the family home.
Last year, the applicant commenced a family law case in Newmarket to seek a divorce and property relief against the testator. However, this proceeding stalled pending the outcome of the present application.
On the other hand, the later wife alleged that she married the testator in China in January 2021 and came to Canada in 2023 when the testator told her and her son to move into the family home, where the applicant and the testator’s son were still residing. The later wife – also named the testator’s “spouse” in his death certificate – likewise applied for equalization.
On May 1, the applicant’s counsel presented a motion seeking relief in this application. During oral submissions, she delivered a factum and cited cases to support the applicant’s arguments.
Justice Fred L. Myers of the Ontario Superior Court of Justice noticed that the hyperlinks in the factum did not connect to the cited cases and unsuccessfully attempted to find these cases via the CanLII website.
The judge asked the lawyer if AI like ChatGPT supported the preparation of the factum. She said she would have to ask her clerk. She could not give the judge the proper citations or printed copies for the cases. After the hearing, the judge reviewed the factum and noticed other errors relating to the cited cases.
The judge noted that ChatGPT or other generative AI applications – which are known to sometimes lead to false legal citations called “hallucinations” – might have had an involvement in creating the factum.
The judge said the applicant’s counsel might have gravely breached her duties and thus committed contempt of court by failing to check if the cases cited were real or relevant to the legal propositions in her written and oral submissions.
The judge stressed that lawyers should read cases before citing them as precedential authorities before the court.
“The court must quickly and firmly make clear that, regardless of technology, lawyers cannot rely on non-existent authorities or cases that say the opposite of what is submitted,” Myers wrote for the court.
On the case’s merits, the Superior Court set aside the June 2020 divorce order, given the invalidity of the divorce documents on their face. While the court decided to consolidate the two estate applications, it did not do the same for the applicant’s family law proceeding in Newmarket.
The court then refused to remove the daughter as estate trustee. Instead, it ordered her to give the parties a list of all the testator’s assets and liabilities as of his death. The court directed the sale of the matrimonial home.
Regarding other assets, the court noted that the testator’s former partners and the estate trustees had a shared interest and should communicate with an estates lawyer with experience enforcing Canadian estates orders in China.
