From: Paul Daly
<paul.daly@uottawa.ca>
Sent: Wednesday
21 February 2024 08:54
To: Barry
Allan; Kelvin F.K. Low; Steve Hedley; obligations@uwo.ca
Subject: Re:
Moffatt v. Air Canada, 2024 BCCRT 149 - negligent misrep by a chatbot
Interestingly
enough, Air Canada was represented by an employee before the tribunal (para 5).
It is not clear whether the employee had any legal training.
The
general rule before this particular tribunal is that parties are not to be
represented by lawyers: see here s. 20 https://canlii.ca/t/8qq7 The
rules for small claims cases might provide otherwise but I doubt it in my
experience, even before a low-level Canadian tribunal a large company like Air
Canada would typically be represented by counsel, unless (as here) there were a
legislative barrier to legal representation.
Cheers,
Paul
From: Barry Allan <barry.allan@otago.ac.nz>
Sent: Wednesday, February 21, 2024 12:10:33 AM
To: Kelvin F.K. Low <kelvin.low@gmail.com>;
Steve Hedley <S.Hedley@ucc.ie>; obligations@uwo.ca <obligations@uwo.ca>
Subject: Re: Moffatt v. Air Canada, 2024 BCCRT 149 - negligent misrep by
a chatbot
Attention : courriel
externe | external email
I wonder if the Air Canada lawyers based the argument that Air
Canada had no responsibility for the actions of the chatbots on jurisprudence
developing in some jurisdictions about the use of similar technology and
defamation. Most obviously England but I think also in Canada, Courts have held
that Google in particular is not responsible for search results (really just a
chatbot without calling it one) without any human intervention. Being a low
level tribunal, the lawyers seem to have taken the approach that they didn't
need to develop their arguments.
Barry
|
|
Barry Allan | BA, BCOM, LLM |
From: Kelvin F.K. Low <kelvin.low@gmail.com>
Sent: Tuesday, 20 February 2024 12:38 pm
To: Steve Hedley <S.Hedley@ucc.ie>;
obligations@uwo.ca <obligations@uwo.ca>
Subject: Re: Moffatt v. Air Canada, 2024 BCCRT 149 - negligent misrep by
a chatbot
The
two key passages (for me at any rate) are paragraphs 27 and 31.
"27. Air Canada argues it cannot
be held liable for information provided by one of its agents, servants, or
representatives including a chatbot. It does not explain why it believes that
is the case. In effect, Air Canada suggests the chatbot is a separate legal
entity that is responsible for its own actions. This is a remarkable
submission. While a chatbot has an interactive component, it is still just a
part of Air Canada s website. It should be obvious to Air Canada that it is
responsible for all the information on its website. It makes no difference
whether the information comes from a static page or a chatbot."
This must be correct. You can use whatever technology you wish to make representations (deterministic or stochastic) but expect to be liable if those turn out to be misrepresentations.
"31. To the extent Air Canada argues it is not liable due to certain terms or conditions of its tariff, I note it did not provide a copy of the relevant portion of the tariff. It only included submissions about what the tariff allegedly says. Air Canada is a sophisticated litigant that should know it is not enough in a legal process to assert that a contract says something without actually providing the contract. The CRT also tells all parties are told to provide all relevant evidence. I find that if Air Canada wanted to a raise a contractual defense, it needed to provide the relevant portions of the contract. It did not, so it has not proven a contractual defence."
Does anyone know what the alleged conditions are? An entire agreements clause perhaps? Would it survive scrutiny in Canada against a consumer, which Moffatt is?
Cheers,
Kelvin
Sent
from Outlook for Android
From: Steve Hedley <S.Hedley@ucc.ie>
Sent: Monday, February 19, 2024 11:52:45 PM
To: obligations@uwo.ca <obligations@uwo.ca>
Subject: Moffatt v. Air Canada, 2024 BCCRT 149 - negligent misrep by a
chatbot
The CyberProf list is currently going full tilt at this one, unsurprisingly. The ODG will I imagine be more restrained, as it is a low-level decision and the problem is only rather superficially analyzed. However, I imagine this will be the first of many similar instances, and so may be worth discussion.
Moffatt v. Air Canada, 2024 BCCRT 149
https://www.canlii.org/en/bc/bccrt/doc/2024/2024bccrt149/2024bccrt149.html
2. In November 2022, following the death of their grandmother, Jake Moffatt booked a flight with Air Canada. While researching flights, Mr. Moffat used a chatbot on Air Canada s website. The chatbot suggested Mr. Moffatt could apply for bereavement fares retroactively. Mr. Moffatt later learned from Air Canada employees that Air Canada did not permit retroactive applications.
3. Mr. Moffatt says Air Canada must provide them with a partial refund of the ticket price, as they relied upon the chatbot s advice. They claim $880 for what they say is the difference in price between the regular and alleged bereavement fares.
Liability was found, on the basis of a negligent misrepresentation for which Air Canada were responsible.
Steve Hedley