Duhaime's Law Dictionary

Question of Fact Definition:

Questions about what actually took place between the parties.

Related Terms: Question of Law, Question of Mixed Law and Fact, Standard of Review, Question of Discretion, Palpable Error, Overriding Error, Ad Quaestionem Facti Non Respondent Judices, Ad Quaestionem Juris Non Respondent Juratores

In the context of an appeal, a question of fact is often put forward as an alleged error of fact; termed as a "question" for reasons of political correctness as it is not an error until the appellate court says so.

A question of fact is usually contrasted with a question of law.

While the interpretation and scope of a law or regulation is a question of law, where the issue is if the facts of a case fall within the law or regulation is a question of fact.

In the 16th Edition of Phipson on Evidence, the authors give these examples:

"... the question of actual knowledge, real intention, bona fides or express malice. So the existence of a nuisance, the unsoundness of a horse, the unseaworthiness of a ship, the competency of a testator, or the subjection to undue influence are (questions of fact for the jury), or whether a card game is a game of mere skill; as also whether an agent's act was within the scope of his authority."

witch's brewIn Canada v Southam, at ¶65, Justice Iacobucci wrote:

"[Q]uestions of law are questions about what the correct legal test is.

"Questions of fact are questions about what actually took place between the parties.

"And questions of mixed law and fact are questions about whether the facts satisfy the legal tests.

"A simple example will illustrate these concepts. In the law of tort, the question what negligence means is a question of law. The question whether the defendant did this or that is a question of fact. And, once it has been decided that the applicable standard is one of negligence, the question whether the defendant satisfied the appropriate standard of care is a question of mixed law and fact. I recognize, however, that the distinction between law on the one hand and mixed law and fact on the other is difficult. On occasion, what appears to be mixed law and fact turns out to be law, or vice versa."

In Wilson v. Clarica, the British Columbia Court of Appeal wrote:

"The existence and nature of a duty is a question of law. Whether a duty has been breached is a question of fact."

In a jury trial, only questions of fact are put to the jury. Questions of law are not; they are to be resolved by the Court.

Characterizing the issue appeal with certainty, compartmentalizing it neatly into the pigeon holes of question of law, question of fact or mixed question of fact and law is not infrequently difficult to segregate; like putting to the mathematician the square root of pi.

Phipson on Evidence:

"This area of the law gives rise to more than a sufficiency of problems concerning the spheres of judge and jury."

And yet the distinction can be critical as an appeal court, once the nature has been determined by it, will apply different standards of review.

For example, circa 2011, it has been suggested that for questions of law, the standard is usually as it should be: correctness.

For questions of fact, a moving target. As of 2011, one jurisdiction has set the standard of review for questions of fact at palpable and overriding error:

"The standard of review on questions of fact is palpable and overriding error. Palpable error is one that is readily or plainly seen. Overriding error is one that must have altered the result or may well have altered the result.

"A trial judge’s findings of fact are to be accorded great deference. An appellate court may only overturn findings of fact if it is established that the trial judge made a manifest error, ignored conclusive or relevant evidence, misunderstood the evidence, or drew erroneous conclusions from the evidence. Absent palpable and overriding error, an appellate court may not substitute its views of the evidence for those of the trial judge and may not interfere with the trial judge’s decision provided there was some evidence upon which the trial judge could have reached his or her decision."1

In R v Beaudry, Justice Charron of the Supreme Court of Canada:

"I readily appreciate that the deference owed to a trial court’s findings of fact must not become a pretext for an appellate court to evade its responsibility to set aside an unreasonable verdict. This is why no finding of fact is entirely exempt from appellate court scrutiny. Nonetheless, as this Court has consistently said, the integrity of our judicial system requires that the trial judge’s privileged position in assessing the facts be respected. It should also be borne in mind that the question whether a verdict is unreasonable is not the same as the question whether a different verdict would have been reasonable had the evidence presented at trial been interpreted differently....

"While the theory has acceptance, consistency in its application is missing. The foundation of the principle is as sound today as 100 years ago. It is premised on the notion that finality is an important aim of litigation. There is no suggestion that appellate court judges are somehow smarter and thus capable of reaching a better result. Their role is not to write better judgments but to review the reasons in light of the arguments of the parties and the relevant evidence, and then to uphold the decision unless a palpable error leading to a wrong result has been made by the trial judge.

"In my view, the need to adhere to this fundamental principle is even more acute when, as in the instant case, what is in issue is the trial judge’s assessment of the credibility of the witnesses."


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