An issue before a court of appeal that requires the application of legal principles.
A question of law is usually contrasted with a question of fact, a mixed question of law and fact and even a question of discretion.
In the context of an appeal, a question of law is often put forward as an alleged error of law; termed as a "question" for reasons of political correctness as it is not a recognized as a error until the appellate court says so.
In Woodhouse AC Israel Cocoa Ltd. Justice Alfred Denning (aka Lord Denning), wrote of the most commonly given example of a question of law:
"It has long been settled that the interpretation of a document is a matter of law for the court, save in those cases where there is some ground for thinking that the words were used by the writer — and understood by the reader — in a special sense different from their ordinary meaning."
Merely to demonstrate the significant paradoxes that exists in this area of the law and yet which are still promoted by appellate courts as a method to sort, reduce and dismiss appeals, contrast the above words with these of Justice Chiasson in 2008 (emphasis added):
"Construction becomes a question of law as soon as the true meaning of the words in which an instrument has been expressed and the surrounding circumstances, if any, have been ascertained as facts. The meaning of an ordinary English word, of technical or commercial terms and of latent ambiguities, and the discovery of the surrounding circumstances (when they are relevant) are questions of fact.
"In my view, taken broadly, the construction of a contract often is a question of mixed fact and law. Insofar as the task narrowly is to determine the meaning of the words in the contract the matter may be a question of law ... but where the factual matrix of the contract is questioned, determining that matrix and its significance is a question of fact. Interpreting the language of the contract in the context of the factual matrix is a question of mixed fact and law."1
At issue may be whether or not the facts lend themselves to a legal principle, which the trial judge may decide applies or not. That interlocutory decision can have significant impact on a trial and if that forms the basis of the appeal, it is a question of law.
Another sometimes challenging example is where a trial judge applies an objective standard to resolve a trial and the appeal centers on the application of that standard. The reasonable man is one such objective standard, often used to determine tort cases and even occasionally making cameo appearances in contract law.
Madam Justice Neilson wrote:
"... an assessment of objective grounds is a question of law, subject to review on a standard of correctness."1
In 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 Canadian National Railways, and in the context of disputed findings of an administrative tribunal, Canada's Supreme Court held:
"The phrase question of law which the Legislature has employed in this enactment is prima facie a technical phrase well understood by lawyers. So construed question of law would include (without attempting anything like an exhaustive definition which would be impossible) questions touching the scope, effect or application of a rule of law which the courts apply in determining the rights of parties; and by long usage, the term question of law has come to be applied to questions which, when arising at a trial by a judge and jury, would fall exclusively to the judge for determination."
In 2006, the Judge Carman of the United States Court of International Trade, writing the opinion in US v UPS:
"A question of law is one involving the meaning of a statutory or constitutional provision, regulation, or common law doctrine. To be a reviewable interlocutory order, the case must turn on a pure question of law, something the court of appeals can decide quickly and cleanly without having to study the record."
The importance of this term is that often an allegation of a question of law is required to launch an appeal. Specifically, in asking a court to review an arbitration award, a question of law must be raised.
Finally, by way of a further illustration, these words of Justice Roach of the Appeal Court of Ontario in Rex v. Morabito:
"It is of sufficient importance to stress it that the crown on this appeal is not asking that the verdict of acquittal be set aside on the ground that the trial judge erred by not giving the proper weight to the evidence for the crown. If that were the point on this appeal it would be doomed to failure from the outset because that is a question of fact and no appeal from an acquittal lies on a question of fact. But that is not the point at all. I repeat that the question which the crown here raises is a pure question of law, namely — Had the judge any power to acquit the accused at that stage of the proceedings?"
- Canada (Director of Investigation and Research) v. Southam Inc.,  1 S.C.R. 748
- Canadian National Railways Co. v Bell Telephone Co. of Canada,  S.C.R. 308
- Hayes Forest Services Limited v. Weyerhaeuser Company Limited, 2008 BCCA 31. Cited with approval in JEL Investments Ltd. v. Boxer Capital Corporation, 2011 BCCA 142 [NOTE 1].
- Rex v. Morabito,  O.R. 528. Although Justice Roach's words were part of a dissenting opinion, they were subsequently adopted by the Supreme Court of Canada in the appeal, published at R. v. Morabito,  S.C.R 172, as well as in the 1951 Alberta Supreme Court, Appellate Division decision in R v Wagner, 100 C.C.C. 384.
- R. v. Perjalian, 2011 BCCA 323 [NOTE 1]
- US v. UPS Customhouse Brokerage, 464 F. Supp. 2d 1364
- Woodhouse AC Israel Cocoa Ltd. SA et al. v. Nigerian Produce Marketing Co. Ltd.,  1 All E.R. 665