What is the standard of review under s. 59(1) of the Rules of Appeal Court of Appeal for a motion of appeal against the decision of a judge on a question of mixed fact and law?

While this approach has the attractiveness of being similar to the deference afforded by appellate courts to decisions of trial judges on questions of mixed fact and law (see Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 36), it is my opinion that the language of s. 59 is not capable of being construed to create such a bifurcated standard of review. Subsection 59(1) states that the standard of review is correctness unless the question involves an exercise of discretion, findings of fact or the application of the principles of natural justice or procedural fairness (in which case the applicable standard of review is set out in subsections (2), (3) and (5)). This means that the standard of correctness is to be applied to all questions of mixed fact and law. The section does not provide that the standard of correctness is to be applied to a question of mixed fact and law only if an incorrect legal principle can be extricated from the reasons of the decision maker and that another standard is to be applied in other cases.