Duhaime's Law Dictionary

Question of Discretion Definition:

Where an appeal predominantly takes issue with the lower court's exercise of judicial discretion.

Related Terms: Judicial Discretion, Standard of Review, Question of Fact, Question of Law, Question of Mixed Law and Fact

A question of discretion is one in which an appellant grounds his or her appeal on an alleged wrongful exercise by the lower court or trial judge of a matter within that judge's judicial discretion.

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

An example of a question of discretion is a witness' credibility which can only be properly assessed by a judge; you had to "be there". Appeals launched and which take issue with an adverse finding on a witness' credibility raise questions of discretion and because they are very difficult for an appeal court to re-assess, the standard of review is usually higher.

Another example is family law cases which involve, for example, the custody of a child. Again, these cases turn on the exercise of judicial discretion as the trial judge has to weigh innumerable factors at trial to make this difficult decision. When they are appealed, they are often aggressively doctored to appear to raise questions of law or questions of fact so as to qualify for a lesser bar of appellate review.

witch's brewA question of discretion has been described as a situation in which an appeal of a lower court or trial judge's order turns on that judge's:

"... balancing against one another a variety of relevant considerations upon which opinions of individual judges may reasonably differ as to their particular weight in a particular case."1

Where the issue on an appeal is characterized as a question of the lower court's exercise of judicial discretion, as opposed to a question of law, a question of fact or a question of mixed fact and law, the standard of review is usually high.

Justice Gonthier in Elsom v Elsom:

"Courts of Appeal should be highly reluctant to interfere with the exercise of a trial judge's discretion. It is he who has the advantage of hearing the parties and is in the best position to weigh the equities of a case."

Words similar to these of Justice Goldie, as set out, in Casa Roma Pizza, often ring out in appeal courts:

"It is well settled that this Court will hesitate long before interfering with a discretionary order of a judge of the (lower court, the trial judge)."

Injustice? Sufficient Weight?

In Harper, Justice Estey of Canada's Supreme Court wrote:

"An appellate Court should be extremely reluctant to interfere with the exercise of a discretionary power by a trial judge. However, there are cases ... where justice demands that the exercise of discretion be reviewed. If a judge proceeds on principle properly applicable to the facts of a case and makes a decision judicially, in the exercise of his discretion, this Court will not interfere. But, if it appears that a judge has misdirected himself, or that his decision is so clearly wrong as to amount to an injustice, the Court can and should review the facts upon which the judgment ought to be given."

Further, in 1994, Justice Cory of the same court, writing in Reza v Canada corrected a lower court's suggest that the standard of review for an appellate court reviewing a lower court's exercise of discretion is whether the exercise of discretion was patently unreasonable, stating:

"While the latter is appropriate in review of decisions of administrative tribunals, the test for appellate review of the exercise of judicial discretion is whether the judge at first instance has given sufficient weight to all relevant considerations."

In summary, questions of discretion will not be interfered with by the appellate courts unless there is little or no evidence to support a finding of fact made by the lower or trial judge.2

It is difficult to rationalize the existence of a separate heading for questions of discretion since virtually all appeals which turn on so-called questions of discretion double as questions of fact. And yet, the determination can be deadly to an appeal as if the appeal is so-characterized by the appellate court, the bar is immediately set extremely high ("injustice"). This is a situation created by the appeal courts in what is an otherwise legitimate concern including deference to the unique perspective afforded only to the trial judge and, as expressed by Holly Brinton:

"... (the) sheer volume prevents an appellate court from being able to review all rulings affecting pre-trial and trial management."


  • Brinton, Holly, British Columbia Appellate Practice (Toronto: Carswell, 1996), page 2-10
  • Burkett v James, [1978] A.C. 297 (House of Lords, NOTE 1)
  • Casa Roma Pizza, Spaghetti & Steak House Ltd. v. Gerling Global Insurance Company, 98 DLR (3d) 600 (BCCA, 1979)
  • Elsom v. Elsom, [1989] 1 S.C.R. 1367
  • Harper v. Harper, [1980] 1 S.C.R. 2. Cited with approval in Elsom.
  • Reza v. Canada, [1994] 2 S.C.R. 394 
  • Wallace v Jay, 2001 BCCA 97, Justice Lambert wrote: "I would like to say generally that as to questions of discretion and the exercise of judgment, if the discretion or the exercise of judgment are exercised judicially on evidence that is before the judge, it is not the function of this court to interfere.... However, our attention was drawn to one or two issues of fact on which the evidence seemed not to support the conclusion of the trial judge, or to provide a very flimsy support." [NOTE 2]

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