Is a finding of unconscionability valid?

The issue as to whether a trial should have been ordered is a question of law reviewable on the standard of correctness. However, the finding of unconscionability raises a question of mixed fact and law and is entitled to deference absent an extricable error of law or palpable and overriding error. A determination of whether the legal standard was met – in this case, whether the transaction was unconscionable – would be subject to a standard of palpable and overriding error, based as it is on an interpretation of the evidence as a whole. In addition, to the extent that findings of pure fact are at issue, or inferences of fact, deference is called for absent palpable and overriding error. See: Housen v. Nikolaisen, 2002 SCC 33 (CanLII), [2002] 2 S.C.R. 235 at paras. 8-37. Analysis