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Amendments to Rule 53.03 of the Rules of Civil Procedure

New Certification Requirements for Factums and Expert Reports

Since the release of ChatGPT into the legal language, eleven Canadian courts, five law societies, two professional liability insurers, one provincial government and the Canadian Judicial Council have issued guidance documents regarding the use of Generative AI. All with one thing in common, emphasizing the need to use Gen AI in the legal space with caution and for lawyers to be responsible for the truth and accuracy of their work, yet none have entirely banned it’s use yet.[1]

As for Ontario, on April 25th, 2024, the Law Society of Ontario’s Futures Committee presented a White Paper for information to Convocation entitled, “Licensee’s use of generative artificial intelligence”, which included a checklist, best practise tips, and discussion about the professional obligations regarding use of Gen AI in law.[2]

Since then, many developments have been made in both Gen AI and the guidelines in law on how it must be used. On December 1, 2024, Rule 53.03 (2.1) of the Regulation was amended by adding new procedural requirements for facta and expert’s reports under the Rules of Civil Procedure. The rules now require any party who submits a factum, or any form of expert report at a trial, on appeal, or in a judicial review application to the court, to file it with a signed certificate of authenticity. The signature could be of the party’s lawyer, or on the lawyer’s behalf by someone the lawyer has specifically authorized, certifying that the person signing the statement is satisfied as to the authenticity of every authority cited in the factum.[3]

Rule 53.03 was also amended to now include the following subrule (2.1.1) which states that an authority that is published on a government website or otherwise by a government printer, on a court’s website, or by a commercial publisher of court decisions, or on CanLII is presumed to be authentic unless proven otherwise.

As it relates to expert reports, the requirement to file a certificate of authenticity does not apply to the following:

  1. a document or record consisting of evidence or potential evidence in the action that the expert analysed or interpreted in the report, if the document or record was provided to the expert by or on behalf of the party intending to call the expert as a witness,
  2. an authority or other document or record cited by the expert in the report only because it was referenced in a report prepared by another expert witness in the action and the expert is commenting on the reference, and
  3. an authority or other document or record referred to in the report the authenticity of which the expert doubts.[4]

All party-engaged experts must now add the same certification to the Form 53[5], Acknowledgment of Expert’s Duty, which they must fill out and sign.[6]

As courts across Canada become more familiar with Gen AI technology and the opportunities and challenges, they will continue to update guidelines and provide principled frameworks for understanding the potential risks associated with Gen AI in the legal space, and the extent to which it can be used beneficially and appropriately to support and enhance the experience of both the client and the legal practitioner.

[1] Law Society of Alberta, “Gen AI Rules of Engagement for Canadian Lawyers”, online: LSA <Gen AI Rules of Engagement for Canadian Lawyers – Law Society of Alberta>

[2] Roy Bornmann, “Report to Convocation – Futures Committee” Law Society of Ontario, online: LSO <Futures Committee Report to Convocation, April 25, 2024>

[3] Rules of Civil Procedure, RRO 1990, Reg 194, s.  4.06.1(2.2), Rule 53.03(2.1)6.1, Rule 53.03(2.1.1)

[4] Ibid, Rule 53.03(2.1.1)

[5] Courts of Justice Act, Form 53 – Acknowledgement of Expert’s Duty, online : Ontario court forms https://ontariocourtforms.on.ca/static/media/uploads/courtforms/civil/53/rcp-53-e.pdf

[6] Ibid

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