News

Instructive examples of “things not to do” continue to germinate in Canada

This newsletter tries to report on developments related to the presence, use and abuse of AI and large-language models (LLMs) in Canadian legal affairs. The editors suspect that these developments will soon increase from a trickle to a deluge. For this period, we offer a couple of examples of odd and disturbing cases. In the British Columbia case of Zhang v. Chen the parties were involved in high-conflict family law proceedings and the father’s counsel filed an application seeking permission for the children to go to China with the father. In support of the application the father’s counsel pleaded two cases, of which citations and summaries were provided in her brief. When the mother’s counsel could not find the cases and demanded copies, the father’s counsel responded that she had realized the cases were not real. She had obtained the citations and summaries from ChatGPT, and due to her unfamiliarity with the platform she had not realized there was any chance they could be fictitious. She had contacted the bar society upon realization, and made apologies to both the court and opposing counsel. Nonetheless, the mother’s counsel sought special costs against the father’s counsel personally, based on the extra time and expense required to “expose the AI ‘hallucination’” and the father’s counsel’s alleged delay in dealing with the matter.

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Plans for platform regulation are less controversial than originally floated, but hate crimes and hate speech provisions are getting all the attention

On February 26, 2024, the federal Minister of Justice tabled Bill C-63, entitled “An Act to enact the Online Harms Act, to amend the Criminal Code, the Canadian Human Rights Act and An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service and to make consequential and related amendments to other Acts”. The Bill principally creates a new law called the Online Harms Act in order to regulate certain online platforms, creates new offenses in the Criminal Code and restores “communication of hate speech” to the Canada Human Rights Act.

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Court determines there’s a reasonable expectation of privacy in a bare IP address, requiring a court order for police to obtain

On the first of March, 2024, the Supreme Court of Canada released a significant privacy decision that should grab the attention of technology lawyers. The 5-4 decision in R v Bykovets follows the 2014 unanimous decision in R v Spencer to conclude that the police have to get a court order before asking a company for an IP address that may lead them to the identity of a suspect. Until this decision, it was unclear whether the police required a court order to collect the digital “breadcrumbs” at the beginning of an investigation.

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Author: Simran Mann, J.D. Candidate at the University of Ottawa

The Women in Technology (WIT) committee celebrated its second annual International Women’s Day event on March 7th at The Loft (18 Tank House Lane, Toronto). The theme of this year’s event was “#InspireInclusion: If Not Her, Then Whom?”, aimed at highlighting the unique challenges and triumphs of women in law and technology.

Standing up from left to right: (1) Tetyana Klimova, Lawyer at EY Law LLP; and (2) Jennifer Davidson, Board Member of CAN-TECH and Partner at Deeth Williams Wall LLP.

With a full house event, this evening sparked reflection, compassion, and unity. With women from all walks of life, the room invited insightful dialogue and discussion. The evening kicked off with opening remarks from Jennifer Davidson, followed by Tetyana Klimova who helped moderate this year’s event.

Fireside Chat

Left to right: (1) Wendes Keung, Co-Chair of WIT and Associate at McCarthy Tétrault LLP; (2) Aashima Singh, Senior Legal Counsel at Lightspeed Commerce; (3) Taslenna Shairulla, Senior Legal Counsel and Chief Privacy Officer at Capital One; (4) Breanna Needham, Associate at DLA Piper; (5) Christine Jackson, Partner at Osler, Hoskin & Harcourt LLP; and (6) Fadwa Mohanna, Co-Founder and CEO at One37.

Featured above are the six extraordinary women who shared their personal stories about overcoming obstacles and reaching new heights. Wendes Keung reminded the room that while imposter syndrome can manifest as a result of perfectionism and self-doubt, it does not define your true abilities. Aashima Singh emphasized the importance of staying true to yourself, even when it does not succumb to other people’s expectations. Taslenna Shairulla explained how failures can serve as valuable lessons and should not deter anyone from achieving their goals. Breanna Needham emphasized that resiliency is not just breaking the glass ceiling, but understanding when to redirect your efforts when the situation no longer serves you. Christine Jackson helped to reframe the conversation on work-life balance by changing how we view priorities through the glass ball theory. Last but not least, Fadwa Mohanna emphasized the importance of women supporting other women and having strong female role models when navigating the gender disparity in technology. Overall, these six women helped to inform, influence, and inspire the roles that women play in society.

Tech Trivia

Featured: Fadwa Mohanna and the vintage brooches.

Following the fireside chat, attendees participated in a game of trivia. Members of the winning team each received a vintage brooch courtesy of Fadwa Mohanna. Inspired by the historical significance of jewelry in the suffragette movement, these brooches symbolize strength and resilience. Inevitably, with the event attracting many talented and smart minds, two teams tied for first place. Thanks to Fadwa, there were plenty of beautiful brooches made available!

Thank You

Top row from left to right: (1) Taslenna Shairulla; (2) Breanna Needham; (3) Kuljit Bhogal (Co-Chair of WIT and Associate at Osler, Hoskin & Harcourt LLP); (4) Fadwa Mohanna; and (5) Tetyana Klimova. Bottom row from left to right: (1) Aashima Singh; (2) Wendes Keung; and (3) Mallory Allan (Associate Legal Counsel at Healthcare of Ontario Pension Plan).

Both Kuljit Bhogal and Wendes Keung played an instrumental role in the curation of this year’s International Women’s Day event. Thank you to this year’s sponsors: Blakes, Cassels & Graydon LLP, Deeth Williams Wall LLP, McCarthy Tétrault LLP, and WeirFoulds LLP. It is thanks to the support of volunteers, sponsors, and attendees that the event was such a success.

From discussions on breaking barriers to celebrating achievements, the event served as a powerful reminder of the progress made and the work still ahead in promoting gender equality and diversity. The WIT committee hopes that this event encourages more people to champion inclusion in their workplaces and communities, embodying the spirit of the mission to #InspireInclusion in their daily lives.

CRTC says that fraudulent phishing campaign was carried out with more than 30,000 recipients 

On October 30, 2023, the Canadian Radio-television and Telecommunications Commission announced that it had imposed an administrative monetary penalty of $40,000 in connection with a high volume phishing campaign. The CRTC said it began an investigation after being alerted by a phone company about a potential scam affecting their customers.

Read the full article here.

Online reviews, right to repair, charger compatibility, voidable contracts and heavier penalties are soon coming into effect. 

The Ontario Government has passed Bill 142, entitled “Better for Consumers, Better for Businesses Act, 2023”, which will replace the province’s Consumer Protection Act, 2022 and received royal assent on December 6, 2023. Of particular note for technology lawyers:

Contract disclosures: The amendments consolidate existing contract disclosure requirements into a single set of “rules respecting various consumer contracts” applicable to a range of contracts including as direct, remote, internet, and future performance contracts. The categories of contracts to which this applies can be expanded by regulation.

Online reviews: Suppliers subject to the act are prohibited from including any terms that prevent consumers from publishing a review about the supplier, its goods or services. 

Limiting damages or recourse: Suppliers are prohibited from limiting the monetary limit for a breach of warranty under the Sales of Goods Act or any deemed warranty under the new Act. In addition, arbitration clauses or other terms that purport to restrict access to the Ontario Superior Court of Justice are prohibited. 

Read the full article here.

Decision follows trend starting in BC that a virtual presence in Canada is enough to be ordered to produce records

The Federal Court of Canada, in connection with an application for a warrant and an assistance order under the Canadian Security Intelligence Service Act, was required to consider whether an assistance order under s. 22.3(1) of that Act could be issued to order a legal person with no physical presence in Canada to assist CSIS with giving effect to a warrant. The order would have extra-territorial effect. 

In a redacted decision, Re Canadian Security Intelligence Service Act (Can), the court concluded that it can, provided that the subject of the assistance order has a “virtual presence” in Canada. The decision notes that the foreign company involved was willing to assist, but needed to see a court order to manage their possible legal liability:

Read the full article here.

Courts, regulators weigh in on the use of Large Language Models in the practice of law

The already-infamous tale of an American litigator who relied on case citations that Chat GPT came up with for his brief—citations that were to fictional cases—is an indicator of the need for caution in the legal profession’s rush to embrace the use of Large Language Models (LLMs) for use in practice. Unsurprisingly, both the courts and professional regulators are weighing in. On 6 October 2023, the Alberta Court of King’s Bench released a “Notice to the Public and Legal Profession” entitled “Ensuring the Integrity of Court Submissions When Using Large Language Models.” Referring to “significant concerns surrounding the potential fabrication of legal authorities through…LLMs,” the Court set out principles to guide the use of the technology:

Read the full article here.

Alberta Law Reform Institute publishes report on creation of electronic wills

In October 2023 the Alberta Law Reform Institute (ALRI) published its Final Report No 119: Creation of Electronic Wills. The impetus for the project was the fact that the province’s Wills and Succession Act is silent on whether it even permits or prohibits the making of electronic wills, let alone whether or how the standard conditions for validity can be met. ALRI noted that it was not required to start “from scratch” with this project, as the Uniform Law Commission of Canada (ULCC) had published its Uniform Wills Act in 2015, and thus ALRI took as its task an inquiry into whether and to what extent Alberta should adopt the ULCC provisions.

Read the full article here.

Mind the Gaps: The Impact of Emerging Threats on Cyber Insurance

Thursday, December 7, 12 to 1 p.m. EST

View CPD Information

Cybersecurity insurance is a nascent product reacting to a fast-evolving threat landscape. Every business in every sector is vulnerable to data breach, ransomware, and other cyber attacks. New cyber threats are on the horizon and most of today’s coverage options are inadequate to cover them. 

Please join Howard Smith for an informative lunchtime webinar on December 7 where he will discuss what cyber insurance does and does not cover. Howard will also shed light on emerging cyber threats impacting industrial control systems and industrial IoT (internet of things) and the gaps in coverage these threats pose.

Featured Speaker: Howard Smith, Cyber Insurance Counsel

Howard Smith was called to the Ontario Bar in 1994 and practices cyber insurance law, providing counsel to insurers, brokers, and corporate risk managers. For many years, Howard provided legal counsel to commercial insurers’ underwriting and claims departments, exposing him to a broad range of commercial insurance products.

Outside of law, Howard ran the business development department of a Canadian venture capital firm that invests in international cybersecurity start-ups. In 2022, he founded a business development agency that represents cybersecurity and computer-vision technologies. 

Moderated by: Jennifer R. Davidson, Partner, Deeth Williams Wall LLP

CPD PENDING

Registration:

• FREE for CAN-TECH Law members
• $25 plus HST: Non-members

REGISTER HERE