Executive Summary: Key Legal and Evidentiary Issues

• Brokers’ attempt to strike embarrassing affidavit and transcript evidence from the court record was denied for being inconsistent with the open court principle.

• Sealing order for the Vigna Affidavit was refused after failing the Sherman Estate test; redactions were deemed a less intrusive alternative.

• Court ruled that evidence from cross-examinations is relevant to the allegations of workplace toxicity central to the action.

• Change of legal counsel and regret over prior litigation strategy was not accepted as justification for removing filed materials.

• NE2 sought $434,347.42 in costs but was awarded a lump sum of $150,000 due to lack of billing detail and excessive legal spending.

• Court emphasized fairness and symmetry, stating it would be improper to keep brokers’ alleged misbehavior private while NE2’s remained public.

Factual background and procedural history

The employment fallout and start of litigation

Marc Bennett was a lead executive at NE2 Canada Inc., a Calgary-based crude oil brokerage founded by Timothy Gunn. In early 2020, Mr. Gunn grew concerned that brokers were becoming too close to clients and were overpaid. By February 1, 2022, Mr. Bennett and another executive, Mandy Burgess, sent a letter urging changes at NE2, effectively inviting Mr. Gunn to step aside. Following this, Ms. Burgess was terminated and Mr. Bennett resigned. In mid-April 2022, five additional brokers—Dario Vigna, Jack Widmer, Charles Douglas, Ryan Beckwermert, and Christy See—resigned from NE2. All had contracts requiring six months of paid “garden leave” before working elsewhere.

After their restrictions expired, these brokers joined a new oil brokerage founded by Ms. Burgess called Modern Commodities Inc., where Mr. Bennett also took a position. This led to significant litigation, including a claim by Mr. Bennett for constructive dismissal, and a counterclaim by NE2 against Mr. Bennett, Ms. Burgess, and the five brokers, alleging conspiracy and breach of fiduciary duties.

The crossfire of pre-trial motions

Initial injunction and security for costs application

In December 2022, NE2 sought an interim injunction to prevent Modern Commodities from launching, alleging misuse of NE2’s confidential information. The court denied the injunction on an interim interim basis, citing lack of cross-examination at the time. NE2 did not pursue the injunction further.

In February 2023, the brokers filed a Security for Costs Application, relying on affidavits previously submitted for the injunction. NE2 then cross-examined the affiants—except Mr. Widmer—between March and April 2023. These transcripts became central to the later applications.

Concerns over reputational harm and attempt to suppress evidence

Fearing misuse of the transcripts, the brokers filed a Restricted Court Access Application in October 2023, supported by an affidavit from Mr. Vigna containing proposed redactions. On October 20, 2023, the court directed that the transcripts not be filed until the application was heard. The Vigna Affidavit included redacted materials such as chat messages, texts, and call logs.

On July 3, 2024, Justice Horner granted an interim injunction preventing dissemination of the Gunn Affidavit and temporarily sealed the Vigna Affidavit. However, on July 24, 2024, Justice Carruthers denied continued sealing, applying the Sherman Estate test and finding the affidavit’s relevance outweighed reputational harm.

The brokers' strike application and court’s rejection

On May 31, 2024, the brokers filed an application to strike both the Security for Costs and Restricted Court Access Applications and their supporting materials. They argued that previous counsel had made errors in filing irrelevant and embarrassing evidence.

Justice Neufeld, in a decision issued November 25, 2024, rejected the Strike Application. He emphasized that the Vigna Affidavit and cross-examinations were relevant to the central issue of workplace toxicity—raised by both sides—and thus could not be withdrawn. The court found the application was a strategic attempt to suppress unfavorable evidence and circumvented established procedures for seeking restricted court access.

NE2 and Mr. Gunn were permitted to file the Cross-Examination Transcripts and the Gunn Affidavit (dated June 14, 2024), subject to redactions for third-party names and client information under the Mason Order.

Costs dispute and final outcome

Following the dismissal of the brokers’ applications, NE2 sought $434,347.42 in costs, representing 50% of solicitor-client fees over 1.5 years. The brokers argued for costs under Column 5 with a two-times multiplier, offering $81,000. They noted their partial success before Justice Horner in obtaining the interim injunction.

Justice Neufeld found that Schedule C costs would not be reasonable given the nature and scale of the litigation but also declined to award costs based on actual fees due to insufficient detail. On May 28, 2025, the court awarded NE2 a lump sum of $150,000. This amount reflected the complexity of the litigation, the imbalance of legal resources, and previous costs agreements in the case. The award excluded costs related to cross-examinations, which had amounted to approximately $250,000 and were carved out at the court’s direction.

Conclusion

The court reaffirmed the open court principle, finding that reputational concerns and changes in legal strategy do not justify removing relevant evidence from the record. The decisions also illustrate the procedural and financial risks of aggressive litigation tactics in high-stakes commercial disputes.