AI cannot replace an employment lawyer

Online, there is a bunch of recent discussions about Artificial Intelligence (AI). AI is not new. It has been around for decades. However, the recent discussion about AI tends to center around Large Language Models (LLMs) such as GPT-4 which was developed by ChatGPT.

LLMs are not sentient. LLMs work thanks to extensive training of an algorithm through massive amounts of data so it can create sentences that appear like coherent responses to prompts. Essentially, the LLM is trying to come up with words that it is programmed to believe work together without understanding the meaning of words in a way that a regular human does.

Despite AI companies claiming that their AI successfully passed the barrister exam, AI is no replacement for an employment lawyer. As this blog will show, using AI is much more likely to bring legal issues than help solve legal issues.

AI is not a good legal aid

AI is not a legal research tool. It cannot help you prepare arguments to be used in front of a court like a lawyer can. A family lawyer from British Columbia learned this the hard way. In Zhang v Chen, (2024 BCSC 285) Ms. Ke was retained as Mr. Chen’s council. Ms. Ke used ChatGPT to help her find cases to support her notice of application. At first glance, the two “case summaries” produced by ChatGPT appeared to be from strong cited cases that could support her legal argument. If Ms. Ke checked a real legal research site like CanLii and ensured that the summaries were accurate, she would have learnt that the citations led to completely different cases. This is because ChatGPT made up these cases. The court noted that LLMs tend to have legal hallucinations. In a study that the court cited, it found that the largest LLMs made up legal information 69% to 88% of the time.

Submitting fake cases is equivalent to lying to the court. The judge in Zhang v Chen stated that citing fake cases in the court is “an abuse of process and is tantamount to making a false statement to the court. Unchecked, it can lead to a miscarriage of justice.” (para 29). Making false statements in court has consequences. Though the court did not award special costs against Ms. Ke, as she did not intend to deceive, it did hold her personally liable for half of the opposing council’s costs for the four days of trial.

AI cannot write like an employment lawyer

AI cannot write a valid and enforceable employment contract. I know this because, in my free time, I asked ChatGPT to write me an employment contract for a fourth-grade teacher. It provided me with a template where if I entered the personal information of the fictional teacher I would have a contract, ready to sign. Despite its professional appearance, ChatGPT’s contract is not enforceable as it violates the Employment Standards Act (ESA) and could cause more problems than it is worth.

ChatGPT gave me a fixed-term employment contract. My prompt did not ask for a fixed-term employment contract. We have already written about the dangers of fixed-term contracts on this blog. One of the more notable dangers in this situation is if the employer found that the fictional fourth-grade teacher was not a right fit early in the employment relationship, they would have to pay out the rest of the fixed-term employment contract.

ChatGPT’s termination clause would easily be dismissed by a judge and found unenforceable. It states that:

• “Either party may terminate this Agreement at any time, with or without cause, upon giving thirty (30) days' written notice to the other party. The School may terminate this Agreement immediately for cause, including but not limited to, the Employee's misconduct or neglect of duty.”

There are three elements to this termination clause that make it invalid. First, it refers to “cause,” which is not found in the ESA and suggests that the intent of the contract is to be bound by common law. Second, it states that the school can terminate the agreement immediately for cause, which is a stricter standard than what’s permitted under Regulation 288/01 to the ESA, which only permits termination without notice when the employee is “guilty of wilful misconduct, disobedience or wilful neglect of duty that is not trivial and has not been condoned by the employer.” Third, it permits the employer to terminate the agreement “at any time” which the recent decision in Dufault v The Corporation of the Township of Ignace (2024 ONSC 1029) found to be invalid language, as there are certain circumstances when an employer cannot terminate an employee such as when they return to work from an ESA-permitted leave. It’s also worth noting that if this was not a termination clause for a one year fixed-term employment contract, it would have also been invalid for providing less notice than what is required under the ESA for employees who work for five or more years. Regardless, since this termination clause is invalid, if an employer attempted to rely on it, they would be liable for the remainder of the fixed-term contract, potentially costing them thousands of dollars.

How Suzanne Desrosiers Professional Corporation can help

Using AI and LLMs to provide you with legal advice and employment documents could result in costly damages and destroy your side of an employment law case. You could save money and get sound legal advice by contacting an employment law firm. At Suzanne Desrosiers Professional Corporation we have employment lawyers with over 40 years of combined legal experience and who are well versed in recent employment law developments. We will not make the above-noted mistakes that AI has been proven to make. To contact one of our employment lawyers please call us at 705-268-6492 or email us at info@sdlawtimmins.com.