Trans woman wins intimate images case at B.C. tribunal despite referring to fake, AI-generated case law

A person holds a smartphone in this stock image. (Shutterstock)

A transgender woman has been awarded $7,500 under B.C.’s Intimate Images Protection Act after taking an anti-trans activist to the province’s Civil Resolution Tribunal.

CRT vice chair Eric Regehr, who heard the case, ordered a publication ban on the names of the parties involved, as well as any information that would identify either of them.

The parties are referred to as “AQ” and “BT” throughout the decision.

According to the decision, which was issued and published online last week, AQ alleged that BT had shared three intimate images of her. Regehr found only two of the three qualified as intimate images under the act, and of those two, AQ had proven that BT shared only one of them.

“AQ is a trans woman,” the decision reads. “BT is an avowed anti-trans activist. The image BT shared had a clear purpose of depicting AQ as a man by altering an image to show AQ’s head on a masculine body.”

Without the anti-trans context, the image would be “relatively benign,” Regehr found.

“The harm associated with sharing the image does not come from anything particularly explicit or graphic in it,” his decision reads.

“Rather, the image is harmful because it dehumanizes AQ and denies her gender identity. I accept AQ’s evidence that the image was hurtful, embarrassing, offensive, and distressing. I find that it is an offence to her dignity. BT also disseminated it publicly within an online context around other anti-trans messaging. I find that AQ is entitled to compensation under the IIPA for this harm.”

Regehr also found that punitive damages were warranted to “denounce and deter” BT’s “egregious conduct.”

The vice chair awarded AQ $5,000, the maximum amount of damages the CRT is allowed to award under the act.

“I find it unnecessary to assess the precise amount of general or punitive damages AQ is entitled to,” Regehr’s decision reads. “Suffice to say, I find that together the combined amount is over the maximum.”

‘Abusive and disrespectful conduct’

In addition to the damages award, AQ sought compensation for her time spent on the CRT application in the form of a special costs award.

Regehr noted that two other CRT vice chairs issued preliminary decisions related to BT’s conduct in the case, including her “persistent refusal to comply with the CRT’s Code of Conduct.”

That code requires parties before the tribunal to “behave courteously and respectfully,” “refrain from abusive behaviour,” and “respect the confidentiality” of the CRT process.

According to Regehr’s decision, BT began breaching these requirements “almost immediately.”

“BT copied numerous non-parties to correspondence that included confidential information, including one of the images at issue,” the decision reads. “BT also intentionally refused to use AQ’s indicated name and pronouns. BT’s breaches continued after the case manager directed her to stop.”

After the first preliminary decision in the matter, BT’s behaviour “worsened,” according to the decision.

“BT persistently ignored the CRT’s code of conduct by deliberately misgendering AQ and otherwise engaging in abusive and disrespectful conduct,” the decision reads. “I find this constitutes reprehensible conduct that is deserving of rebuke.”

Applicant used AI in filings

AQ asked for a special costs award of $25,000, but “did not provide much of an explanation or justification” for seeking that amount, according to Regehr’s decision.

“Under the CRT’s rules, the basis for compensation is for AQ’s time,” the decision reads.

“Given that, I find it relevant that AQ used artificial intelligence to create some, and maybe most, of her submissions. These submissions bear the two hallmarks of artificially created submissions: they are very long and repetitive, and (more tellingly) they confidently cite irrelevant rules, incorrect sections of statutes, and court cases that are either about something completely different from what the submissions assert or do not exist at all.”

While AQ suggested that the $25,000 figure would serve as compensation for time she spent on the CRT dispute as well as dealing with police and Crown counsel, Regehr’s decision notes that he cannot provide compensation for expenses related to anything other than the CRT process. It also notes that the CRT will only award special costs under “extraordinary circumstances,” a threshold Regehr determined BT’s conduct had met.

Despite the assistance – or hindrance – of AI, AQ’s submissions likely took her “considerable time,” Regehr concluded, noting that AQ would have had to spend this time regardless of BT’s conduct.

“I also note (AQ) was only partially successful,” the decision reads. “Bearing all this in mind, I find that $2,500 is appropriate compensation.”

Regehr ordered BT to pay AQ $7,500 – representing the maximum damages of $5,000, plus $2,500 in special costs – within 30 days of his decision.