Humans Update Federal Court Practice Notice Regarding Use Of AI

On May 7, 2024, the Federal Court of Canada (the FC) issued an updated practice notice on “The Use of Artificial Intelligence in Court Proceedings” (the Notice), which amends its prior notice of the same name that was published on December 20, 2023 (as previously reported by the E-TIPS® Newsletter here).

In accordance with Chief Justice Crampton’s explanatory note that accompanied the Notice, the update is intended to address issues raised by the FC’s Artificial Intelligence Working Group. Most of these issues relate to the FC’s requirement that court-submitted materials must have a Declaration in the form prescribed in the Notice whenever they contain content created or generated directly by artificial intelligence (AI). This includes, among other things, the following clarifications on Declarations:

1. Purpose of Declaration. The FC clarified that the primary purpose for using a Declaration is to notify the FC and other parties that AI was used to generate content.
2. When Declaration Should Apply. The FC specified that a Declaration is not required when AI is “used to merely suggest changes, provide recommendations, or critique content already created by a human who could then consider and manually implement the changes”. However, a Declaration is mandatory when AI plays a role in preparing litigation materials that “resembles that of a co-author”.
3. Counsel’s Onus When Taking Over Matters. In the event that legal counsel takes over a matter from a previous lawyer or self-represented litigant, the FC expects the new counsel to make best efforts to determine whether any AI content was included in previously filed materials and provide a Declaration for those materials that they believe “may” include such content.
4. Court’s Treatment of Declarations. The FC clarified that it will not draw any negative inference towards the content of a document that is solely based on the inclusion of a Declaration.

The FC has committed to full transparency and continuing consultations regarding future iterations of the Notice through its Artificial Intelligence Working Group.

Summary By: Imtiaz Karamat