For understanding the Judge's discretion powers here and please refer to the following statute. It clearly shows in s 49.13 that Her Honour did not have to do what the case law said. She actually had discretion and decided not to use it!
Courts of Justice Act R.R.O. 1990, REGULATION 194
Amended to O. Reg. 263/03
RULES OF CIVIL PROCEDURE COSTS CONSEQUENCES OF FAILURE TO ACCEPT
Plaintiff's Offer49.10 (1) Where an offer to settle,
(a) is made by a plaintiff at least seven days before the commencement of the hearing;
(b) is not withdrawn and does not expire before the commencement of the hearing; and
(c) is not accepted by the defendant,
and the plaintiff obtains a judgment as favourable as or more favourable than the terms of the offer to settle, the plaintiff is entitled to to the date the partial indemnity costs offer to settle was served and substantial indemnity costs from that date, unless the court orders otherwise. R.R.O. 1990, Reg. 194, r. 49.10 (1); O. Reg. 284/01, s. 11 (1).
Defendant's Offer
(2) Where an offer to settle,
(a) is made by a defendant at least seven days before the commencement of the hearing;
(b) is not withdrawn and does not expire before the commencement of the hearing; and
(c) is not accepted by the plaintiff,
and the plaintiff obtains a judgment as favourable as or less favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer was served and the defendant is entitled to partial indemnity costs from that date, unless the court orders otherwise. R.R.O. 1990, Reg. 194, r. 49.10 (2); O. Reg. 284/01, s. 11 (2).
Burden of Proof
(3) The burden of proving that the judgment is as favourable as the terms of the offer to settle, or more or less favourable, as the case may be, is on the party who claims the benefit of subrule (1) or (2). O. Reg. 219/91, s. 6.
MULTIPLE DEFENDANTS
49.11 Where there are two or more defendants, the plaintiff may offer to settle with any defendant and any defendant may offer to settle with the plaintiff, but where the defendants are alleged to be jointly or jointly and severally liable to the plaintiff in respect of a claim and rights of contribution or indemnity may exist between the defendants, the costs consequences prescribed by rule 49.10 do not apply to an offer to settle unless,
(a) in the case of an offer made by the plaintiff, the offer is made to all the defendants, and is an offer to settle the claim against all the defendants; or
(b) in the case of an offer made to the plaintiff,
(i) the offer is an offer to settle the plaintiff's claim against all the defendants and to pay the costs of any defendant who does not join in making the offer, or
(ii) the offer is made by all the defendants and is an offer to settle the claim against all the defendants, and, by the terms of the offer, they are made jointly and severally liable to the plaintiff for the whole amount of the offer. R.R.O. 1990, Reg. 194, r. 49.11.
OFFER TO CONTRIBUTE
49.12 (1) Where two or more defendants are alleged to be jointly or jointly and severally liable to the plaintiff in respect of a claim, any defendant may serve on any other defendant an offer to contribute (Form 49D) toward a settlement of the claim. R.R.O. 1990, Reg. 194, r. 49.12 (1); O. Reg. 627/98, s. 5.
(2) The court may take an offer to contribute into account in determining whether another defendant should be ordered,
(a) to pay the costs of the defendant who made the offer; or
(b) to indemnify the defendant who made the offer for any costs that defendant is liable to pay to the plaintiff,
or to do both. R.R.O. 1990, Reg. 194, r. 49.12 (2).
(3) Rules 49.04, 49.05, 49.06 and 49.13 apply to an offer to contribute as if it were an offer to settle. R.R.O. 1990, Reg. 194, r. 49.12 (3).
DISCRETION OF COURT
49.13 Despite rules 49.03, 49.10 and 49.11, the court, in exercising its discretion with respect to costs, may take into account any offer to settle made in writing, the date the offer was made and the terms of the offer. R.R.O. 1990, Reg. 194, r. 49.13.
I
have highlighted the above section in red to point to all of you that the Court actually had discretion. There was NO need to do what Judge Molloy did. Instead she took a strick approach and nailed Viki to the wall. Molloy was told and even agreed about Vicki's mental state in Her decision. She knew it and knew how rich the Watchtower was and how "middle class" Vicki's family was.
Yet she decided to use her power as a Judge and slam Vicki into the ground. Damn shame of misjustice in my not so humble opinion.
So a vindictive Watchtower, an useless legal counsel and a Judge who decided not to excercise her discretion that the Government granted her to ensure vicitms would not be hurt all cost Vicki dearly in the end.
hawk
