In a peculiar development, a recent decision of the Ontario Superior Court of Justice raises another instance of AI (mis)usage (or alleged non-usage?) in court filings. We’ve seen many previous cases where AI has produced references to case law that doesn’t exist, but in Kapahi Real Estate Inc. v. Elite Real Estate Club of Toronto Inc, 2026 ONSC 1438, Justice Myers was faced with a factum that cited seven very real cases, complete with correct neutral citations. The issue then? The quotations supposedly pulled from those cases were completely fabricated. The cases were real but the quoted passages were nowhere to be found.
Perhaps even more curiously however, counsel perplexed the court by claiming that while there were clear errors in the factum, it was due to human error and that he did not use AI tools to assist in drafting the factum. Justice Myers found that explanation very hard to accept, noting that fabricating seven distinct, argument-supporting quotations through inadvertence alone is essentially incomprehensible:
[41] I do not understand how one can make up a quotation that supports the argument in a factum by misreading a case or being careless. The only way I can understand Mr. Parvaiz having made up seven distinct quotations is if he believes that counsel is allowed to make up law in his factum. Perhaps doing it once could be some kind of slip or error that mistakenly found its way into the factum. But not seven times.
In the end, Justice Myers rightfully referred this to the LSO for its further consideration (and after also dealing with Ko v. Li, 2025 ONSC 6785 just months ago, he may need an extended vacation).
May this be the latest warning for those tempted to use AI in their drafting; even if the case law citations appear correct, everything referenced needs to be doublechecked, including all relied-upon law as well as your regional court practice directions for AI usage. And remember to include paragraph numbers in your citations.