Navigating the Risks of Google & ChatGPT: A Cautionary Tale
Hey Google, find me the closest Starbucks?
“We found you 5 Starbucks in a 10-kilometre radius.”
Hey Google, what’s the weather today?
“Today in Toronto, it will be a high of 20 degrees and a low of 13 degrees. It is currently cloudy with a chance of rain at 5 pm.”
Hey Google, help me draft a termination clause in Ontario?
“Sorry, I don’t understand.”
We turn to Google for all our day-to-day questions but, sometimes, it doesn’t have all the correct answers, especially for employers. When terminating employees, the appropriate termination, severance pay, and/or common law pay is based on the content of an employee’s termination clause in their employment contract and whether it’s enforceable. If there’s no enforceable termination clause, then other factors such as length of employment come into play to determine the common law reasonable notice period. Search engines such as Google can call up all sorts of data without the ability to inform the searcher about what is accurate and what is not.
The world’s online search capabilities have evolved, and we now have ChatGPT. We put ChatGPT to the test and asked it to draft a without cause termination clause for an employment contract in Ontario. The answer is below:
Without Cause Termination Clause
1. Termination Without Cause
1.1 Notice or Payment in Lieu of Notice:
The Employer may terminate the Employee's employment at any time without cause by providing the Employee with written notice or payment in lieu of notice, or a combination of both, in accordance with the Employment Standards Act, 2000 (ESA) of Ontario. The notice period and/or payment in lieu of notice shall be based on the Employee’s length of service with the Employer, as stipulated by the ESA.
1.2 Severance Pay:
If applicable, the Employer shall provide the Employee with severance pay in accordance with the Employment Standards Act, 2000 (ESA). The amount of severance pay shall be determined based on the Employee’s length of service and the criteria outlined in the ESA.
1.3 Accrued Wages and Benefits:
Upon termination without cause, the Employer shall pay the Employee all accrued wages, vacation pay, and any other benefits to which the Employee is entitled up to the date of termination, in accordance with the Employment Standards Act, 2000 (ESA) and the Employer’s policies.
1.4 Compliance with Employment Standards Act:
Notwithstanding any other provision in this Agreement, the Employee shall receive at least the minimum notice or payment in lieu of notice, and severance pay, if applicable, as required by the Employment Standards Act, 2000 (ESA) of Ontario. If any provision of this Termination Clause provides less than the minimum standards set by the ESA, that provision shall be deemed to provide the minimum standards required by the ESA.
1.5 Return of Property:
Upon termination without cause, the Employee agrees to return all property belonging to the Employer, including but not limited to, keys, equipment, documents, and confidential information.
This clause should be reviewed by a legal professional to ensure it meets all specific needs and complies with current laws and regulations.
Although this seems like a detailed clause, there are some areas that can be problematic.
Firstly, in the case of Dufault v. The Corporation of the Township of Ignace, 2024 ONSC 1029[1], the termination clause was found unenforceable because the without cause termination provision included the employer’s ability to terminate “at any time” in its “sole discretion”. As shown above, ChatGPT has provided similar language in its without clause termination clause which, given this case law, would be problematic.
Secondly, the ChatGPT language arguably fails to provide for benefit continuation during the statutory minimum period as required by the ESA. This failure cannot be saved by the “saving clause” set out at 1.4 above. The Ontario Courts have held that employers cannot rely on boilerplate savings clause provisions to get out from under what is an otherwise unenforceable termination clause.[2]
This principle was recently upheld in Tan v. Stostac Inc., 2023 ONSC 2121, at para 11: “I do not accept that the attempt to incorporate the ESA’s provisions in the final sentence of the clause’s “without cause” portion detracts from the clear assertion of a right to terminate without notice for any just cause.”
Lastly, many employers want to include termination clauses in employment agreements to limit their termination liability however, in the ChatGPT generated clause above, there is no language which limits the employee’s entitlements upon termination in any way. So, in this case, an employee would be entitled to common law reasonable notice which would likely be more than the ESA minimums referenced in the above termination language.
Also, of important note, is that ChatGPT thankfully cautions the user with the following: “This clause should be reviewed by a legal professional to ensure it meets all specific needs and complies with current laws and regulations”. So, of course, employers should be weary when using these search engines and always seek further employment law advice before implementing AI generated contract clauses, especially termination clauses.
The reliance on ChatGPT is becoming more prevalent for not only employers but for lawyers as well. In 2023, a lawyer decided to use ChatGPT to find case law for a personal injury lawsuit. However, to the court’s disbelief, the cases were not real. The lawyer stated, “the artificial intelligence tool assured him the cases were real” and he “did not understand it was not a search engine, but a generative language-processing tool.”[1] This resulted in the lawyer and law firm paying costs in the amount of $5,000. This raised red flags for court systems across Canada causing some courts to issue a warning about the use of artificial intelligence in courtrooms.[2] In particular, the Alberta court has directed “all lawyers and self-represented litigants using AI tools to double check that any cases they plan to reference do in fact exist by consulting authoritative sources, such as court websites or reliable services like CanLII.”.
Takeaways
The lesson here? Just because something is shiny and new doesn’t mean it’s good. Be cautious about believing everything you read online regarding employment law. Always conduct your own thorough research using authoritative sources to verify the accuracy of any information you receive from AI sources.
Do not rely on ChatGPT or Google to draft your employment contracts, employee handbooks or termination letters.
Employers - seek the assistance of a licensed lawyer or paralegal specializing in employment law to provide you with proper information related to the current state of the law and to ensure that your termination clauses are properly drafted.
[1] Dufault v. The Corporation of the Township of Ignace, 2024 ONSC 1029
[2]Rossman v. Canadian Solar Inc., 2019 ONCA 992, at para 30: “The Termination Clause is ambiguous, and the ambiguity is not erased by the saving provision.”
At para 35: “It cannot be the case that the saving provision here – designed to make the Termination Clause compatible with future changes to the ESA – could reconcile a conclusory provision that is in direct conflict with the ESA from the outset.”
This principle was recently upheld in Tan v. Stostac Inc., 2023 ONSC 2121, at para 11: “I do not accept that the attempt to incorporate the ESA’s provisions in the final sentence of the clause’s “without cause” portion detracts from the clear assertion of a right to terminate without notice for any just cause.”
[3] Lawyer Used ChatGPT In Court—And Cited Fake Cases. A Judge Is Considering Sanctions
[4] Alberta courts issue warning about the use of artificial intelligence in courtrooms
