Executive summary: key legal and evidentiary issues

• Appellant William Proudfoot, the successful party at trial, was deprived of costs after February 6, 2024, for unreasonably rejecting a formal settlement offer from the respondents.

• Rule 9-1(5)(a) of the Supreme Court Civil Rules grants courts discretion to withhold costs from a party who unreasonably refuses a settlement offer, even if that party ultimately prevails at trial.

• Trial judge found the appellant's rejection of the settlement offer was driven by emotion and a sense of injustice rather than considered reflection of the likelihood of success on the issues he advanced.

• Appellant argued the trial judge improperly placed the burden of proof on him and made material findings about his emotional state in the absence of relevant evidence.

• Whether a successful plaintiff can be deprived of costs when the trial award ($107,629) exceeds the settlement offer ($101,379 adjusted for interest) was a central issue on the leave application.

• Application for leave to appeal was dismissed by the Court of Appeal, finding no questions of principle extending beyond the case and no reasonable prospect of success.

The underlying dispute and solicitor's negligence

William Alexander Proudfoot retained the defendant respondents, Jeffrey Bryant and North Shore Law LLP, to file a lawsuit seeking to vary his mother's will. Mr. Bryant inadvertently neglected to initiate that action before expiry of the limitation period — an error he has acknowledged responsibility for. Proudfoot then sued the respondents for negligence and breach of contract, seeking to recover damages he would have obtained had the action been filed in time. At trial, Proudfoot succeeded and was awarded $107,629.

The settlement offer and the costs dispute

On February 6, 2024, the respondents offered to settle with the appellant in the amount of $100,000 plus costs and disbursements, valued at $101,379 once adjusted for interest. Proudfoot rejected that offer. His counsel later explained that the rejection was based on the appellant's belief that there was a realistic possibility the value of a condominium owned in joint tenancy between his mother and one of his brothers would form part of the estate, and on that basis, he considered the settlement offer unreasonable. The trial judge, however, was not persuaded by this explanation. Applying the factors set out in Rule 9-1(6) of the Supreme Court Civil Rules — including whether the offer ought reasonably to have been accepted, the relationship between the terms of the offer and the final judgment, the relative financial circumstances of the parties, and any other factor the court considers appropriate — the trial judge concluded that the appellant's refusal to settle was much more probably driven by his emotions and sense of injustice rather than the explanation provided by his counsel. The trial judge specifically noted that the appellant's anger and sense of injustice stemming from the will stemmed from his belief that his brothers were criminals who received the family ranch for free, and from his baseless dismissal of George's extraordinary contributions to his mother's quality of life.

The trial judge's costs ruling

Although Proudfoot was the successful party at trial, the trial judge exercised discretion under Rule 9-1(5)(a) to deprive him of costs and disbursements after the February 6, 2024 offer. The judge acknowledged the general rule that a successful party is entitled to their costs, but determined that the policy reasons behind the rule warranted a departure in this case. The factor under Rule 9-1(6)(b) favoured the respondents because the offer they made fell just below the damages awarded at trial. The third factor under Rule 9-1(6)(c) weighed in favour of the appellant because the respondents were insured, and the appellant was therefore more likely to be impacted by an adverse finding than the other side. With reference to other factors under Rule 9-1(6)(d), the trial judge noted that both parties were responsible for conduct in the proceeding that prevented the economical and efficient resolution of issues at trial, making the impact of litigation conduct appear neutral. Nonetheless, the trial judge concluded that the primary issue driving the litigation was the appellant's emotions and sense of injustice, and that this overwhelmed the other issues.

The application for leave to appeal

Proudfoot filed an application for leave to appeal the costs order on October 21, 2025. Since he was appealing costs only, leave was required under Rule 11(f) of the Court of Appeal Rules, B.C. Reg. 120/2022. He advanced four grounds: that the trial judge incorrectly placed a burden on him to show it was not unreasonable for him to refuse the offer to settle; that the trial judge made a material finding of fact regarding his emotional state of mind and its impact specific to rejection of the settlement offer in the absence of relevant evidence; that the trial judge erred by not allowing the unpredictability of a court's willingness to vary a will to inform the assessment of whether rejecting the offer was unreasonable; and that the trial judge failed to appreciate that because the damages award exceeded the settlement offer, rejecting the offer was inherently reasonable — indeed, the appellant's position was that when damages awarded at trial are greater than the amount of a settlement offer, it is automatically an error of law to deprive the successful plaintiff of costs.

The appellate court's analysis and ruling

Justice DeWitt-Van Oosten, sitting in Chambers at the Court of Appeal for British Columbia, dismissed the application on February 9, 2026. The Court found that the trial judge's reasons did not improperly impose a burden of proof — the words "burden" and "proof" appear nowhere in his reasons. Rather, the trial judge asked whether the settlement offer, in the specific context of the case, was objectively reasonable and ought to have been accepted, which was consistent with the holistic analysis mandated by Rules 9-1(5)(a) and 9-1(6). The Court further held that the trial judge's costs analysis is made within the context of the entirety of the proceeding, and there was nothing legally improper about allowing the findings made about the appellant at trial to inform the assessment of costs, including the assignment of weight to the rationale offered by counsel for rejecting the settlement offer. As for the argument that a successful plaintiff can never be deprived of costs when the award exceeds the offer, the Court found this position not persuasive, explaining that the appellant's reliance on Gichuru v. Purewal, 2021 BCCA 91 was misplaced — Gichuru was not a Rule 9-1(5)(a) case and the appellant misinterpreted its reach. In Gichuru, the trial judge had declined to find that the settlement offer ought to have been accepted and then proceeded to withhold costs based on that offer, whereas in the present case, the trial judge engaged in the Rule 9-1(5)(a) and Rule 9-1(6) analyses and found that the offer ought to have been accepted. The application for leave to appeal was dismissed, with costs of the application to follow in the ordinary course. The exact amount of those costs was not specified in the decision.