The decision of RSR Road Surface Recycling v. Bonnechere Excavating et al., 2026 ONSC 698, provides an interesting commentary and decision on the use of AI and the court’s sanctions when the work produced by AI, is not verified by counsel. Reference is made to the new Practice Directions on the Use of Artificial Intelligence in Civil Proceedings.
In RSR, a motion was brought to primarily deal with delay, security for costs, and construction lien issues. While the court allowed the action to proceed and ordered $190,000 in security for costs, the most significant and precedential aspect of the decision concerns counsel’s misuse of AI in preparing a factum.
Use of AI in the Proceeding
What Happened
- Counsel for RSR used AI software to assist in drafting the factum.
- Opposing counsel raised concerns when a quoted passage attributed to a Court of Appeal decision could not be located in the cited authority.
- On further review, the court found additional inaccuracies, including misstatements of legal principles in another cited case.
- When questioned directly, RSR’s counsel admitted:
- AI was used to generate portions of the factum.
- Counsel verified that cases existed, but did not read or verify the substance of the cases relied upon.
Rule 4.06.1 Violations Identified by the Court
The court found clear non‑compliance with Rule 4.06.1 of the Rules of Civil Procedure, specifically:
- Failure to certify authenticity of authorities
- No required certification statement confirming the lawyer was satisfied as to the authenticity of the authorities cited.
- Improper citations
- No paragraph or page references.
- No hyperlinks to authorities, as required for electronic filings.
- Substantive inaccuracies
- Legal principles attributed to cases did not reflect what the cases actually held.
Court’s Finding on Intent
- The court found the breach deliberate, not inadvertent.
- Counsel could not certify authenticity precisely because he had not verified the authorities, which the court viewed as incompatible with professional obligations.
Court’s Treatment of AI Misuse
Reference to New AI Practice Directions
Justice Hooper expressly relied on the Ontario Superior Court of Justice’s new Practice Directions on the Use of Artificial Intelligence in Civil Proceedings, emphasizing:
- AI use is not prohibited,
- But lawyers remain fully responsible for accuracy, authenticity, and compliance with procedural rules.
Sanctions Considered by the Court
The court listed the full range of potential consequences for misuse of AI in court proceedings:
- Public reprimand
- Cost sanctions
- Adjournment or dismissal
- Contempt proceedings
- Referral to the Law Society of Ontario
The court stressed that sanctions are fact‑specific and discretionary.
Sanctions Imposed in This Case
The court:
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- Refused to rely on RSR’s factum in deciding the motion.
- Allowed counsel to proceed only with oral submissions.
Costs Sanctions (Reserved)
- The court expressly stated it would:
- Factor the misuse of AI into its costs analysis
- When reviewing post‑motion cost submissions.
This leaves open the possibility of:
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- Elevated costs against RSR
- Or personal cost consequences for counsel, depending on submissions.
Importantly, the court did not refer counsel to the Law Society at this stage, but explicitly preserved that sanction as an available remedy in appropriate cases.
Key Lessons for Counsel Using AI
AI Is Not a Shield
Using AI does not reduce counsel’s obligations. The lawyer remains responsible for:
- Verifying authorities,
- Ensuring accuracy,
- Certifying authenticity.
Verifying the Existence of a Case Is Not Enough
The court made clear:
- Confirming that a case exists is insufficient.
- Counsel must read and confirm what the case actually says.
Procedural Compliance Is Mandatory
Failure to comply with Rule 4.06.1, particularly the authenticity certification, will be treated seriously, especially where AI is involved.
Ontario Courts Are Actively Policing AI Use
This decision shows Ontario courts are:
- Alert to AI‑generated filings,
- Willing to question counsel directly,
- Prepared to impose real consequences.
Although AI may provide assistance, it is vital that especially, when it comes to case law analysis and conclusions, verification of these findings is completed by counsel of record, to ensure that the information is accurate. As officers of the court, there the duty of accuracy and not misleading is paramount.