Duhaime's Law Dictionary

Question of Mixed Law and Fact Definition:

An appellate standard of review of a lower court's order where the appeal issues are divided between question(s) of fact and question(s) of law.

Related Terms: Question of Fact, Question of Law, Standard of Review, Question of Discretion, Palpable Error, Overriding Error

Also referred to as mixed questions of law and fact or question of mixed fact and law (reversing law and fact).

In the context of an appeal, a question of mixed law and fact is often put forward as an alleged error of mixed law and fact; 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 Canada v Southam, at ¶65, Justice Frank 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."

witch's brew An example was given in the 1989 Ontario Court of Appeal case, R v Independent Order of Foresters, in which Justices Grange, Robins and Tarnopolsky had before them a prosecution for misleading advertising, Justice Grange writing the decision for the majority:

"The Crown's contention that the meaning of the advertisements in the sense of the construction or interpretation of the documents standing by themselves is a question of law must therefore be taken as correct.

"But the determination of the meaning does not end the matter. We must still discover whether the advertisement is false or misleading and unless it is shown to be so beyond a reasonable doubt the accused must be acquitted. The Crown did not seriously contend that these advertisements were false, but it did contend that they were misleading. That question is a question of mixed fact and law, depending as it does not only upon the meaning of the advertisement but the facts of the occasion, the implications of the publication and the inferences that might reasonably be drawn therefrom."

In the 1916 English case of Hutchinson v. M'Kinnon, Justice Atkinson wrote:

"My point upon these findings in the words of the statute is this — that they may often involve decisions purely on points of law, often decisions on mixed questions of law and fact, and often decisions on questions of pure fact."

The consequences of an issue on appeal being characterized as a question of mixed fact and law depends on the current of jurisprudence in any given jurisdiction, and few areas of the law are subject to sudden or gradual change that the appellate standard of review. Here is one jurisdiction's latest (circa August 2011) rule of law on the topic:

"The standard of review applicable to a trial judge’s determination of whether or not the standard of care was met by a defendant ... involves the application of a legal standard to a set of facts, a question of mixed fact and law. This question is subject to a standard of palpable and overriding error unless it is clear that the trial judge made some extricable error in principle with respect to the characterization of the standard or its application, in which case the error may amount to an error of law.

"An appellate court will not interfere with a finding of fact if there is some evidence upon which the trial judge could rely to reach his or her conclusion. The fact that a court of appeal would have preferred to accept other evidence to the contrary, leading to a different finding, will not justify a reversal of the trial judge’s conclusion.

"The privileged position of the trial judge to find facts extends to the testimony of expert witnesses."


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