What is the test for a defence of fair comment?
British Columbia, Canada
The following excerpt is from Lougheed Estate v Wilson, 2017 BCSC 1366 (CanLII):
In order to succeed on a defence of fair comment it is essential that the comment have a sufficient factual foundation. The facts on which the comment is based must be explicitly or implicitly indicated and sufficiently stated or so notorious as to be already understood by the audience. In Mainstream Canada v. Staniford, 2013 BCCA 341, our Court of Appeal affirmed that not all facts need to be true but there must be enough true facts to establish a sufficient ‘factual substratum’:
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