The Quebec Superior Court grappled with the use of artificial intelligence in an arbitration decision recently in Association des ressources intermédiaires d'hébergement du Québec (ARIHQ) v. Santé Québec - Centre intégré universitaire de santé et de services sociaux du Centre-Sud-de-l'Île-de-Montréal, 2026 QCCS 1360 (CanLII). This was a private arbitration where the Superior Court quashed the arbitration decision because significant portions were generated by artificial intelligence rather than by the arbitrator himself. Reading the decision on its face revealed serious issues as the arbitrator’s reasons referenced non-existent scholarly articles and judicial decisions (see paragraphs 102 to 112). The Court did leave the door open that an arbitration decision would not be quashed if the use of artificial intelligence was minimal or was about a less important issue (see paragraph 117).
The Court noted the importance of writing reasons citing Baker v. Canada (Minister of Citizenship and Citizenship Immigration), [1999] 2 SCR 817. The Court also noted the importance of giving reasons citing Northwestern Utilities Ltd. and al. v. Edmonton, [1979] 1 SCR 684 which states that giving reasons reduces to a considerable degree the chances of arbitrary or capricious decisions, reinforces public confidence in the judgment and fairness of administrative tribunals, and affords parties to administrative proceedings an opportunity to assess the question of appeal and if taken, the opportunity in the reviewing or appellate tribunal of a full hearing which may well be denied where the basis of the decision has not been disclosed. The Court found these considerations weigh in favour of a prohibition for the arbitrator to delegate his or her decision-making authority.
The Court also noted it is important for arbitrators not to delegate their decision-making authority to third parties but also noted the rule is not intended to prohibit the use of a researchers, or clerks, or lawyers who prepare notes and authorities. Nor does it prohibit consulting colleagues. But the Court warned the participation of third parties in the drafting process must not compromise the integrity of the process and the decision-maker must maintain the responsibility of the writer and editor in order to avoid any interpretation that a third party has taken control or has been delegated the task of writing reasons (Khan v. College of Physicians & Surgeons of Ontario, 1992 CanLII 2784 (ON CA)).
The Canadian Judicial Council has written Guidelines for the Use of Artificial Intelligence which provides helpful guidelines to judges as they navigate AI tools.
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