comment defence requires an assessment of the defamatory words used in the full elements at issue are the second and third elements of the defence, along with the question of malice. [97] When invoked at trial, the defendant must prove the elements of the fair comment defence before the onus switches to the plaintiff to defeat the defence by establishing malice by the defendant (para. 52). On a s. 4 application, however, the onus is on the plaintiff to show grounds to believe that the defendant cannot establish one or more of its elements and thus the defence has no real prospect of success. [98] As I explain, the chambers judge also did not err in concluding that Mr. Neufeld failed to challenge the validity of the fair comment defence. (a) [99] Was the Expression Based on Fact? To constitute fair comment, a factual basis for the impugned statement must be explicitly or implicitly indicated, at least in general terms, within the publication itself or the facts must be “so notorious as to be already understood by the audience” (WIC Radio, at para. 34). The defence is unavailable if “the factual foundation is unstated or unknown, or turns out to be false” (para. 31). [100] There is, however, no requirement that the facts support the comment, in the sense of confirming its truth (para. 31). The expression must relate to the facts on 2023 SCC 14 (CanLII) context surrounding their use (WIC Radio, at paras. 55-56). In this appeal, the only