Will You Take This Algorithm to Court?

By: Anna Artyushina (Center for International Governance Innovation)

What occurs when artificial intelligence (AI) becomes even more ingrained in our daily lives than it already is? The ArriveCAN incident serves as an instructive example. Auditor General Karen Hogan uncovered numerous breaches in the procurement, development, and rollout of the application, which mistakenly forced tens of thousands of Canadians into quarantine and, according to legal experts, infringed upon the Canadian Charter of Rights and Freedoms.

More alarmingly, Canada’s border authorities lack documentation to justify the $59.5 million expenditure on the app. In the Netherlands, an AI-powered application covertly deployed by tax authorities erroneously identified thousands for tax evasion, leading to temporary custody loss for some families.

These instances underscore that governing algorithms boils down to fundamental democratic governance. Technology products are often obscured for commercial motives, a practice that cannot be tolerated. With AI, the potential harms, spanning from misinformation to electoral interference to the erosion of democratic institutions and our way of life, are too significant to ignore.

In light of this, Canada is poised to renegotiate trade agreements with key partners, inevitably raising the question of AI regulation. While the nation stands to gain from unhindered AI trade, robust mechanisms for accountability and recourse for these systems must be in place.

Consider the case of Jake Moffatt, a British Columbia resident, who, in 2022, sought to book a flight to attend his grandmother’s funeral via Air Canada’s website. The airline’s chatbot ostensibly offered assistance regarding bereavement policies, advising Moffatt to purchase full-price tickets and seek a refund afterward. However, the chatbot’s guidance proved erroneous as Air Canada lacked retroactive bereavement policies.

Despite the algorithm’s error, the airline refused accountability, shifting the responsibility to the customer for not verifying the chatbot’s information. Moffatt escalated the matter to the British Columbia Civil Resolution Tribunal and emerged victorious. In February 2024, the tribunal ordered Air Canada to reimburse Moffatt $650.88, representing the discrepancy between regular and bereavement fares.

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