The S. 137.1 Motion
 The respondent’s motion to dismiss the action under
s. 137.1 was heard on February 6 and April 20, 2018.On June 28,
2018, the motion judge released her decision in which she granted
the respondent’s motion and dismissed the appellant’s action.
 The motion judge found there was no doubt that the
respondent’s expressions related to matters of public interest,
under s. 137.1(3): at paras. 39-40. The motion judge then
proceeded from that point to say that she was prepared to assume
that the appellant’s claim had substantial merit, within the
meaning of s. 137.1(4)(a)( i): at para. 46.
 Turning to s. 137.1(4)(a)( ii), which requires the plaintiff to
prove that the respondent has no valid defence in the proceeding,
the motion judge stated that this required the appellant to
demonstrate that none of the defences raised by the respondent
“[could] possibly succeed”: at para. 48. However, in considering
the defences raised by the respondent, the motion judge found
that the appellant faced an “insurmountable hurdle” with respect
to the defence of fair comment: at para. 55. Consequently, she did
not deal with the respondent’s justification, qualified privilege or
notice defences. The motion judge also did not consider the “
balancing” part of the test set out in s. 137.1(4)(b).
 Regarding the issue of fair comment, the motion judge set
out the constituent elements of the defence of fair comment, as
articulated in WIC Radio Ltd. v. Simpson,  2 S.C.R. 420,
 S.C.J. No. 41, 2008 SCC 40, at para. 28:
(a) the comment must be on a matter of public interest;
(b) the comment must be based on fact;
(c) the comment, though it can include inferences of fact, must be recognizable as comment;
(d) the comment must satisfy the following objective test: could any person
honestly express that opinion on the proved facts?
(e) even though the comment satisfies the objective test the defence can be
defeated if the plaintiff proves that the defendant was subjectively actuated by express malice.
 The motion judge was satisfied that each constituent
element was present. The motion judge had already found that
the comments were on matters of public interest. She also found
that they were based on fact. The motion judge further found
that the comments were “arguably” recognizable as opinion. She
referred to the view that words that appear to be statements of
fact may, in pith and substance, be properly construed as comment, “particularly in an editorial context where loose, figurative,