[1] On April 12, 1999 I heard a motion brought by the plaintiffs under rule 399 of the Federal Court Rules, 1998 asking me to set aside or vary an order that I had made on January 25, 1999 dismissing a motion by the plaintiffs and imposing certain conditions.

[2] The plaintiff had not provided the Court with an explanation of his failure to appear on January 25 to support his motion and so, in light of the respondent’s wish to proceed, I decided not to adjourn.

[3] However, having heard Mr. Brough’s oral arguments on April 12, and having considered the written submissions that he filed after the hearing, I am satisfied that the plaintiffs failed to appear to move their motion on January 25, 1999 “by accident or mistake” within the meaning of rule 399.

[4] On the other hand, I am not satisfied that the plaintiffs have established “a prima facie case why the order should not have been made”, which is also a requirement of rule 399 before the Court may set aside or vary an order. Accordingly, the plaintiffs’ motion to set aside or vary is dismissed.

[5] Mr. Brough is a vexatious litigant and has been unsuccessful in obtaining leave under subsection 40(4) of the Federal Court Act to institute or continue a proceeding. Requiring Mr. Brough to make any futher applications for leave by way of a written motion does not prejudice his ability to put before the Court material and submissions in support of a grant of leave under subsection 40(3). Mr. Brough is an articulate person who has demonstrated an ability to express himself clearly in writing, and has acquired knowledge of the Federal Court Rules.

[6] I would emphasize, however, that leave is only likely to be granted on the basis of a motion that is grounded in both fact and law: unsubstantiated assertions are unlikely to result in the grant of leave.

[7] Preventing Mr. Brough from bringing applications for leave under subsection 40(3) in the ordinary way serves the important function of reducing any further amount of time and resources that the respondent may otherwise have been required to expend in attending to oppose Mr. Brough’s motions. The order is also designed to conserve the Court’s resources in dealing with groundless motions brought by the plaintiffs.

[8] For these reasons the motion is dismissed.

    J.F.C.C.

Toronto, Ontario

May 20, 1999