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Judge says AI could have been used

Courts mindful of technology
|Written By Anita Balakrishnan
Judge says AI could have been used
Carole Piovesan says courts are grappling with the use of AI in litigation. Photo: Laura Pedersen

A judge capped the costs award in an occupier’s liability personal injury costs judgment, writing that the use of artificial intelligence should have “significantly reduced” counsel’s preparation time. The decision in Cass v. 1410088 Ontario Inc., 2018 ONSC 6959 reduced the starting point for disbursements by $11,404.08, citing both research fees as well as other aspects of the lawyers’ bill, and awarded a total cost award against the plaintiff of $20,000.

“What we are seeing from the bench, at least, is that the courts are mindful of the use of this technology and are grappling with what it means for the litigation process,” says Carole Piovesan, co-lead of the national cybersecurity, privacy and data management group at McCarthy Tétrault LLP in Toronto, who was not involved in the case.

The Nov. 22 decision involves Kristen Cass, who alleged she slipped and fell on the floor of 1410088 Ontario Inc., which then operated a bar called My Cottage BBQ & Brew.  

According to an earlier decision in the case, Cass v. 1410088 Ontario Inc., 2018 ONSC 5439, Cass fell on the night of Sept. 2, 2007 and injured her ankle.

Port Dalhousie Vitalization Corporation, also listed as a defendant, offered to settle for $4,000 but was rejected, presiding Justice Alan Whitten wrote.

Defendant PDVC, represented by Benson Percival Brown LLP Barristers & Solicitors associate Eli Lipetz, was “entirely successful” at a September 2018 hearing and sought partial indemnity costs of $17,112.09 from before the offer and substantial indemnity costs of $23,989.51 after the offer, with disbursements totalling $24,300.67, Whitten wrote.

But Cass’ lawyer, Rosemary Book of Hillier & Hillier in Brampton, Ont., argued that the fees were excessive. One of Book’s questions was why there was a legal research fee for case precedents, “which are available for free through CanLII or publicly accessible websites.”

Whitten’s analysis of the fees focused on the hours billed by Lipetz and Michael Schmidt, another lawyer that worked on the file. Lipetz said he cannot provide comment on the ruling, and Book did not provide comment by deadline. One issue was with a $900 research fee.

Whitten wrote: “$900.00 for legal research is problematic. One assumes that counsel graduated with the basic legal knowledge we all possess. This matter was unlikely his first blush with the world of ‘occupier’s liability,’ and specifically the liability of landlords. . . . All in all, whatever this ‘research’ was would be well within the preparation for the motion. There was no need for outsider or third party research. If artificial intelligence sources were employed, no doubt counsel’s preparation time would have been significantly reduced.”

In the rest of the decision, Whitten also cut the costs awarded for an expert opinion, hammered the bill for use of a law student and said that 20 or 30 hours, not the 80 hours listed, was more appropriate for preparation for the summary judgment motion.

“In this day and age of boiler plate pleadings and the instant availability of drafting precedent, the hours expended appear to be excessive. The same could be said of the conduct of the examinations for discovery,” Whitten wrote.

Another recent decision, Drummond v. The Cadillac Fairview Corp. Ltd., 2018 ONSC 5350, released on Sept. 13, dealt with the issues of costs and said that using artificial intelligence as a legal research tool should be encouraged.

In that Ontario Superior Court of Justice case, Cadillac Fairview objected to the disbursement of $1,323 for legal research for costs incurred using WestLaw, according to Justice Paul Perell, who wrote the decision.

“The case law is divided on whether a disbursement for legal research is recoverable on a party and party assessment of costs,” wrote Perell. “The reality is that computer-assisted legal research is a necessity for the contemporary practice of law and computer assisted legal research is here to stay with further advances in artificial intelligence to be anticipated and to be encouraged. ”

Isi Caulder, a partner at Bereskin & Parr LLP in Toronto, who works on intellectual property law, says Whitten’s comments reflect a growing sentiment that lawyers need to get with the times.

“Really, that judge was saying, ‘If you can do this faster, why are you not doing it faster?’” she says. “Why are you charging your client for something that could be done more efficiently?”

Legal research is an important practice of law, and using artificial intelligence can help make the research more efficient, as well as make the lawyer use their time better, says Shane Katz, who acted for plaintiff Stephen Drummond in Drummond v. The Cadillac Fairview Corp. Ltd., 2018 ONSC 5350 but was not involved in Cass v. 1410088 Ontario Inc., 2018 ONSC 6959.

Katz, a lawyer at Singer Kwinter in Toronto, says some aspects of the Cass decision were still concerning to him, particularly the judge’s suggestion that the need for research was questionable given the lawyers’ base experience and knowledge.

“If I’m hiring a lawyer for anything, I would hope the lawyer would research the law on my issue as needed,” says Katz.


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