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Feds launch directive on automated decision making

(March 12, 2019, 8:41 AM EDT) -- On March 4, 2019, Jane Philpott, president of the Treasury Board and minister of digital government, launched the federal government’s Directive on Automated Decision Making purported to guide government departments in the transparent and accountable use of artificial intelligence (AI).

The government of Canada stated that on consultation with public servants and automation thought leaders in the industry, the government is now committing to create and deliver ground-breaking AI solutions.

“Artificial intelligence gives government an invaluable opportunity to improve services to the Canadians we serve. Canada's leadership in the field of artificial intelligence and our burgeoning AI industry are creating a powerful partnership to improve digital government for the betterment of all,” Philpott said.

Carla Qualtrough, minister of public services and procurement and accessibility has also said: “Our government is investing strategically in Canadian artificial intelligence and is leading a streamlined and outcomes-based procurement process for the acquisition of AI solutions. The new list of pre-qualified suppliers for artificial intelligence technologies is a prime example of how we are using an agile procurement approach to provide the right tools to federal organizations — all while aiming to improve services for Canadians.”

The new directive establishes a framework consisting of ongoing discussions with academia, industries and other governments, and uses AI in a manner that is compatible with “core administrative law principles” such as transparency and accountability.

The government of Canada website contains a draft detailing how projects associated with the new directive can implement an automated decision-making system.

In a previous article, I wrote about the Ontario Superior Court of Justice’s pilot project launched on Feb. 11, the Digital Hearing Workspace (DHW). The program is now in force, and applies to all Commercial List proceedings. It is used to deliver, store, organize and retrieve all documents electronically. Since the launch date, parties and their counsel are required to use DHW to deliver documents electronically to all judicial officials and other parties and/or counsel in their actions. Failure to upload documents to the platform are addressed by the presiding court official.

Furthermore, in a late 2018 article I commented on Justice Alan Whitten’s ruling in the decision, Cass v. 1410088 Ontario Inc. 2018 ONSC 6959, in which the Superior Court of Justice was called upon to consider a costs award following a successful defendant’s summary judgment motion.

Justice Whitten not only dismissed the defendant’s plea for disbursements expensed on legal research due to its failure to use free legal research services but went even further to hold that AI tools should have been employed and would have “significantly reduced” the client’s legal fees.

Finally, I have also commented on Google’s AI platform, Duplex, which successfully made calls using very human-like features and set up appointments for its user. At that time, I considered its ability to offer a significant organizational and litigating advantage to litigators across the country.

The new government directive is just another step in the saga of the eventual automation of mundane administrative tasks. The legal industry’s resistance to this change will create great hurdles to lawyers and their staff alike, when technology does decide to come in and sweep us all off of our feet.

Modern judiciaries have already begun to expect the employ of legal tech tools by counsel, students, and the courts. As we can see, not only are the courts catching up, but the government of Canada is too.

Once again I repeat: should lawyers choose not to live up to the challenge, they could end up with a very disappointed client, potentially large and assessment-worthy client cost consequences and all sorts of reprisal.

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