In July, a Civil Rules Committee group unveiled potential changes to how courts handle AI evidence
As the group that has historically been tasked with making rules for Ontario’s civil court proceedings considers potential guardrails around AI-generated evidence, a Toronto lawyers’ organization is raising concerns about how new rules could interact with existing guidelines or another working group’s ongoing overhaul of Ontario’s civil framework.
In mid-July, the Ontario Civil Rules Committee’s subcommittee on artificial intelligence, chaired by Ontario Court of Appeal Justice Peter Lauwers, sought feedback on four proposed changes to the Rules of Civil Procedure around AI-generated evidence.
The Civil Rules Committee is distinct from the Civil Rules Review Working Group, which was launched by Attorney General Doug Downey and Ontario Superior Court of Justice Chief Justice Geoffrey Morawetz in 2024 to comprehensively overhaul the civil rules.
The subcommittee’s proposed changes include a formal definition of “artificial intelligence” as “a collection of technologies that replicate human intelligence in processing information by performing tasks considered to be cognitive, such as perceiving, learning, reasoning, problem-solving, and understanding and generating language.”
Under a second proposal, parties looking to submit evidence generated using AI must identify the software they used, identify the categories of data used to train the software, and provide supporting evidence to show that the software’s output is valid and reliable.
A third proposal would give parties the power to challenge the authenticity of AI-generated or modified evidence, while a fourth proposal outlines criteria for the admissibility of AI-generated expert evidence.
The subcommittee noted that its proposed rules aim to tackle issues not explicitly addressed by the Ontario Evidence Act or the Canada Evidence Act, which regulate how evidence can be used in court proceedings.
In a Sept. 11 letter to Lauwers, however, the Toronto Lawyers’ Association argued that Ontario’s current civil rules – along with case law and legislation – can already be interpreted so they apply to cases involving AI-generated evidence.
The TLA letter also noted that the subcommittee’s July report does not address how the proposed AI rules “are connected to, or will operate alongside” the Civil Rules Review Working Group’s proposed overhaul of Ontario’s civil rules, which was unveiled in April and promised to result in “sweeping, comprehensive changes” to Ontario’s litigation processes.
“The most fundamental question is, are these proposed changes necessary at present?” TLA President Anna Wong told Law Times on Monday. “We’re not necessarily saying yes or no, but inviting the subcommittee to provide the profession with more insights on what it’s thinking.”
In response to the subcommittee’s proposal for providing a process to challenge modified evidence, for example, the TLA letter pointed out that the Ontario Evidence Act “already contemplates safeguards for electronic records” and said the Canada Evidence Act had similar provisions.
“While ensuring such provisions capture AI technology is a valid consideration, the TLA would welcome more insight from the subcommittee as to the need for an alternative test for addressing potentially false or unauthentic AI-generated content,” the TLA’s letter read.
On Monday, Wong adds that “the risk of misleading evidence has been a concern, of course, even before the advent of AI – photos, videos, and other visual evidence could be doctored using editing, retouching, and other techniques to mislead.
“The common law and the statutory framework already set out a regime which requires parties seeking to adduce such evidence to show their authenticity.”
While Wong says the TLA would appreciate more insight into how the subcommittee’s proposed AI rules would interact with these existing evidence frameworks, she adds, "overall, we are heartened by the fact that this consultation is taking place.
“It's obvious… that the Civil Rules Committee is closely monitoring the use of AI in Ontario’s justice system and assessing whether existing laws are keeping pace with the technology.”
