Mahoney,
J.:—The
respondent
has
commenced
a
number
of
actions
against
the
appellant
and
a
related
Canadian
company
arising
out
of
the
fraudulent
misrepresentation
of
the
value
of
goods
sold
by
the
appellant
to
the
Canadian
company
and
imported
from
the
United
States
to
Canada.
In
four
of
the
actions
duty,
sales
tax,
interest
and
forfeiture
are
sought.
In
the
fifth
only
duty,
sales
tax
and
interest
are
sought.
In
total,
almost
$150
million
is
claimed.
The
appellant
has
examined
the
respondent's
representative
for
discovery.
The
respondent
has
not
yet
examined
the
appellant
or
the
other
defendant
for
discovery.
Of
the
appeals
presently
before
the
Court,
A-916-85
is
representative
of
the
four
actions
that
claim
forfeiture
while
A-927-85
is
taken
in
the
fifth
action.
Both
are
from
interlocutory
orders
of
the
Trial
Division
which
dismissed
the
appellant’s
applications
to
strike
out
the
statements
of
claim
and
dismiss
the
actions
as
against
it.
Those
motions
were
brought
under
paragraphs
(c)
and
(f)
of
Rule
419(1)
and
also
on
the
basis
of
the
Court's
inherent
jurisdiction
because,
the
appellant
says,
the
actions
against
it
are
scandalous,
frivolous
or
vexatious
and
otherwise
an
abuse
of
the
process
of
the
Court.
The
appellant’s
entire
argument
hangs
on
the
proposition
that,
while
the
statements
of
claim
allege
that
the
appellant
was
an
importer
of
the
goods
in
issue,
and
thus
liable
to
pay
duty,
the
evidence
which
the
respondent
has,
as
disclosed
on
the
examination
for
discovery
of
its
representative,
is
incapable
of
proving
that
allegation.
Failing
such
proof,
it
follows,
in
the
appellant’s
submission,
the
actions
against
it
are
unfounded
and,
therefore,
properly
to
be
dismissed
at
this
stage;
the
respondent
is
not
entitled
to
obtain
the
required
evidence
by
examining
the
appellant’s
representative
for
discovery.
There
is
a
danger
in
making
particular
findings
of
fact
at
a
preliminary
stage
in
proceedings.
We
should
prefer
to
avoid
that.
However,
it
is
by
no
means
clear
to
us
that
the
evidence
presently
in
the
respondent’s
possession,
as
disclosed
by
its
representative,
would
necessarily
lead
to
the
conclusion
that
the
appellant
is
not
liable,
in
law,
for
the
amounts
claimed.
We
are
entirely
satisfied
that
the
learned
trial
judge
did
not
err
in
dismissing
the
appellant’s
applications.
The
learned
trial
judge
awarded
the
respondent
costs
of
each
application
on
a
solicitor
and
client
basis
payable
forthwith
after
taxation
notwithstanding
that
the
applications
were
dealt
with
together
on
substantially
the
same
basis.
She
gave
no
express
reasons
for
that
award
although
the
respondent
does
point
to
a
number
of
observations
throughout
the
reasons
for
judgment
which,
in
its
submission,
support
the
solicitor
and
client
award.
While
they
are
clearly
reasons
for
dismissal
of
the
motions,
they
do
not,
in
our
view,
support
conclusively
the
award
of
costs
she
made.
Costs
as
between
solicitor
and
client
are
exceptional
and
generally
to
be
awarded
only
on
the
ground
of
misconduct
connected
with
the
litigation.
Misconduct
supporting
the
award
is
not,
in
our
opinion,
apparent
on
the
face
of
the
record.
The
appellant
had
a
right
to
bring
the
motions
at
the
stage
of
proceedings
it
did
and
it
had
a
serious
argument.
While
an
appellate
court
is
reluctant
to
interfere
with
what
is
essentially
an
exercise
of
judicial
discretion,
it
will
necessarily
do
so
when
that
exercise
of
discretion
is
not
supported
by
reasons
or
apparent
on
the
record.
The
award
of
multiple
sets
of
costs
likewise
cannot
be
sustained
in
the
circumstances.
We
would
vary
the
orders
of
the
Trial
Division
by
striking
out
the
awards
of
costs
and
by
substituting
therefor
the
award
of
a
single
set
of
party
and
party
costs
in
respect
of
both
orders
subject
of
the
present
appeals
and
would
otherwise
dismiss
the
appeals
with
a
single
set
of
costs.
Appeals
allowed
in
part.
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