Glen Hill Terrace Christian Homes Inc. v. Canadian Union of Public Employees (CUPE) Locals 2225-06/12 and 5110, 2024 CanLII 86576

PEHT Case No: 2001-18-PE

Glen Hill Terrace Christian Homes Inc., Applicant v Canadian Union of Public Employees (CUPE) Locals 2225-06/12 and 5110, Respondent v Pay Equity Office, Participating Nursing Homes, Ontario Public Service Employees Union, Attorney General on behalf of the Crown in Right of Ontario, Equal Pay Coalition and the Ontario Federation of Labour, Service Employees International Union, Local 1, Ontario Agencies Supporting Individuals with Special Needs, Ontario Long Term Care Association, and Ontario Nurses' Association, Intervenors

BEFORE: M. David Ross, Chair

DECISION OF THE TRIBUNAL: August 21, 2024

1. This is an application under the Pay Equity Act, R.S.O. 1990, c.P.7, as amended (“the Act”).

2. Section 4.2 of the Statutory Powers Procedure Act permits a single presiding officer to decide this procedural or interlocutory matter.

3. The applicant has requested reconsideration of the Tribunal’s procedural decision dated July 15, 2024. The Tribunal has also received notice that the applicant has sought judicial review of the same decision.

4. The grounds on which the applicant seeks reconsideration are:

i. Glen Hill, as applicant, will be entitled to make, and the Tribunal will consider, full submissions on its position(s) in this matter, including regarding the appropriate method for pay equity maintenance, as the doctrine of issue estoppel does not apply to any part of Glen Hill’s case;

ii. Glen Hill will be entitled to adduce, and the Tribunal will fully and fairly consider, its evidence and submissions concerning all issues that Glen Hill, as applicant, has raised before or wishes to raise the Tribunal, including the scope and applicability of the Court of Appeal for Ontario’s decision in Ontario Nurses’ Association v. Participating Nursing Homes (“PNH”); and

iii. the Glen Hill Application is a contested and adversarial proceeding before the Tribunal, which is brought by Glen Hill and directly and materially engages its interests.

The Applicant has had the Opportunity to Make Submissions

5. An underlying premise of the applicant’s request for reconsideration is its assertion that submissions were neither invited nor received from the applicant on the issue of whether the proxy method must be used to maintain pay equity at Glen Hill’s facilities, or on whether the Court of Appeal’s decision in PHN requires the proxy method to be used.

6. This assertion is incorrect. On August 2, 2021, the respondent filed its response, after it was held in abeyance for years, pending the Participating Nursing Homes judicial review and appeal of the Divisional Court’s decision. In the response, the respondent requested the Tribunal to determine the application on a prima facie basis. In support of its request, the respondent submitted:

7. The job-to-job and proportional value methods presume that a male job class exists in the workplace that can be compared to female job classes. This method is not suitable for female-dominated workplaces such as the Employer’s. The proxy method is required to establish pay equity and to ensure that pay equity is maintained.

8. Pay equity at Glen Hill Marnwood and Glen Hill Strathaven was achieved through the proxy method of comparison. At paragraphs 11 -14 of the Application, the Employer accepts that the Employer was subject to the proxy method of comparison for the purposes of establishing pay equity and that the proxy method was used.

9. The Court of Appeal’s decision in Ontario Nurses’ Association v. Participating Nursing Homes finds that the proxy method of comparison must be used for pay equity maintenance in those workplaces where the proxy method of comparison applies to establishing pay equity. These workers cannot be denied ongoing access to male comparators.

10. CUPE submits that the Employer has failed to maintain pay equity as required by the Act. The Application fails to disclose material facts which establish the Employer has maintained pay equity in accordance with the Court of Appeal’s decision in Ontario Nurses’ Association v. Participating Nursing Homes.

11. The Employer’s submissions indicate that the Employer has not applied the proxy method to ensure that pay equity was maintained in the workplace. The Employer cannot comply with the Act if the proxy method of comparison with ongoing access to male comparators in the proxy employer has not been undertaken.

12. The Court of Appeal in Ontario Nurses’ Association v. Participating Nursing Homes directed the Tribunal to specify procedures which should be used to ensure the employees, represented by unions, where pay equity was established through the proxy method, will continue to have access to male comparators to maintain pay equity.

13. At the time of these submissions, the Tribunal has not released the above-noted procedures. CUPE reserves the right to make further submissions once the Tribunal specifies such procedures.

14. CUPE respectfully requests that the Tribunal dismiss the Application in its entirety.

15. CUPE respectfully requests that the Tribunal make the following orders pursuant to section 25 of the Act:

a. An order declaring that the Employer failed to maintain pay equity as required by the Act;

b. An order declaring that the maintenance of pay equity through the proxy method of comparison with ongoing access to male comparators in the proxy employer is the appropriate method for establishments where pay equity was achieved through the proxy method of comparison, including the Employer’

c. An order directing the Employer to undertake the proxy method of comparison to conduct pay equity maintenance;

37. The Court of Appeal’s decision in Ontario Nurses’ Association v. Participating Nursing Homes, 2021 ONCA 148, is binding on the Tribunal and outlines the proper interpretation of pay equity maintenance requirements in establishments where pay equity was achieved through the proxy method of comparison.

… 57. There is no dispute that the Employer was subject to the proxy method of comparison for the purposes of establishing pay equity.

58. The Court of Appeal’s decision in Ontario Nurses’ Association v. Participating Nursing Homes, 2021 ONCA 148 finds that where pay equity was achieved through the proxy method of comparison, the proxy method of comparison with access to male comparators at the proxy employer must be used for pay equity maintenance.

59. The Employer has not pled any material facts which establish that pay equity has been maintained in accordance with the Act and above noted decision of the Court of Appeal.

60. CUPE submits that pay equity maintenance is an ongoing obligation found in the Act and the Employer cannot be saved by its lack of record keeping. Pay equity maintenance is required under the Act and the Employer has not provided any evidence which establishes that pay equity has been maintained. The Employer cannot comply with the Act in the absence of any evidence that pay equity has been maintained or any action has been taken by the Employer to maintain pay equity through the proxy method of comparison in its establishment.

61. The above-noted decision from the Court of Appeal clearly indicates that employees in establishments where pay equity was achieved through the proxy method are entitled to pay equity maintenance through the proxy method and access to male comparators at the proxy employer.

62. The Employer asks the Tribunal to make an order which fundamentally contravenes the Court of Appeal’s findings. The Employer cannot be said to have maintained pay equity where it provides no evidence that pay equity has been maintained through the proxy method of comparison and access to male comparators.

63. CUPE submits that the Review Officer’s orders should not be revoked because it provides a partial process to ensure that pay equity is maintained in this establishment. To comply with the Act following the Court of Appeal’s decision, the Employer must be directed to undertake pay equity maintenance through the proxy method of comparison with access to male comparators in the proxy employer.

[emphasis added]

7. Therefore, the respondent pled that the job-to-job and proportional value methods of comparison were not appropriate for the Employer’s female dominated workplace. The respondent also pled that no evidence had been pled by the Employer to suggest that pay equity could have been maintained. The respondent’s position on the Court of Appeal’s decision and the application to this case was also made clear to the Tribunal and the applicant.

8. On August 3, 2021, the Tribunal issued a decision that required the applicant to file its submissions to respond to the August 2, 2021 submissions:

9. the respondent has requested the Tribunal to dismiss this application on a prima facie basis ad submitted in support of its request that the applicant’s position cannot be supported given the Court of Appeal’s findings.

10. The applicant shall have until August 24, 2021 to file any submissions it wishes the Tribunal to consider in response to the respondent’s request.

11. The applicant filed its submissions on August 24, 2021, as directed. In its submissions, the applicant referred to the pay equity maintenance process with regards to the proxy method several times:

12. Considering the decisions of both Courts, pay equity maintenance using the proxy method requires ongoing access to male comparators. Although the Tribunal has yet to rule on the framework of that ongoing access, it is apparent that unless the decisions of the Courts are set aside by the Supreme Court the proxy method prescribed in the Review Officers’ Order is plainly wrong.

13. Glen Hill has raised two distinct triable issues in this Application. First that the Order must be set aside because it is not possible to comply with the requirements to gather information which no longer exists. Second, because the method of maintenance specified in the Order is contrary to the law as found by the Court of Appeal for this province. These two issues should be determined by this Tribunal.

14. Regarding the maintenance method under proxy, there is a recent decision of this Tribunal in the Participating Nursing Homes matter [ONA v. Participating Nursing Homes, 2020 CanLII 2058 (ON PEHT) …

15. Considering the Tribunal’s reasons in the case above, we submit that the issue of maintenance under the proxy method in the instant case should be put into abeyance and joined with the two Applications which were before the Tribunal in the Participating Nursing Homes, all to be heard together.

16. At no point in the applicant’s August 24, 2021, submissions did the applicant provide any new material facts in support of its position that the proxy method was not required, which could have included identifying new internal male comparators or claiming that female job classes had changed gender dominance. The applicant did not even submit that it had sufficient male comparators (without specifically providing the material facts regarding any purported male comparators) such that the proxy method was not required in this case.

17. Rather, the applicant referred to the process as “maintenance under the proxy method”, “maintenance method under proxy”, and “pay equity maintenance using the proxy method”, and its submission was more that this issue should be put in abeyance and joined/heard together with the Participating Nursing Homes cases due to the similarity of the issues. The Court of Appeal’s decision, in Participating Nursing Homes, 2021 ONCA 148 (ON CA) was issued in April 2021. The applicant did not plead any facts or make any further submissions on in reply to CUPE’s response.

18. On August 26, 2021, the Tribunal deferred considering the issue of pay equity maintenance until the Supreme Court of Canada had the opportunity to consider the issue or denied leave to appeal. That decision also set out the process for receiving submissions on the applicant’s argument that the order was impossible to comply with back to 2005. Leave to appeal was denied.

19. On November 23, 2021, the Tribunal issued its decision on the issues in dispute. At paragraph 3, the Tribunal held:

In the August 26, 2021 decision, the Tribunal also deferred the issue of whether the proxy methodology is required with respect to pay equity maintenance. On October 14, 2021 the Supreme Court of Canada dismissed leave to appeal. Accordingly, given the Court of Appeal’s decision in Participating Nursing Homes, 2021 ONCA 148, that position is dismissed as the Tribunal cannot arrive at a conclusion inconsistent with the Court of Appeal’s without violating the doctrine of stare decisis.

14. At paragraph 28 of that decision, the Tribunal held:

Once the parties have completed the steps of the pay equity process internal to Glen Hill, the parties are directed to write to the Tribunal indicating this fact, and the Tribunal will provide direction about how they are to use proxy male comparators for the purpose of pay equity maintenance.

[emphasis added]

15. The applicant has never sought reconsideration or judicial review of the November 23, 2021, decision. In this case, as set out in the July 15, 2024 decision, this issue has always been framed as whether the Employer has maintained pay equity using the proxy method of comparison. The Review Officer characterized the issue that led to the application as:

Has the Employer demonstrated it is maintaining pay equity for female job classes represented by CUPE Locals 2225-06/12 and 5110 under Part I of the Act using the proxy method of comparison?

16. The applicant has referred to the November 23, 2021 decision as “interlocutory”. The Tribunal does not view its decisions on the three issues raised in the application as “interlocutory”. The November 23, 2021, decision decided the outstanding issues in dispute. Decisions made by a full panel which dismiss parties’ positions on issues they have raised are final. The Tribunal understands that the November 23, 2021 decision was not the last point of contact with the parties in this case, but the issue currently before the Tribunal is not the same as the ones it decided in the November 23, 2021 decision.

17. In the normal course, once the Tribunal issues its decision, the parties would complete the processes on their own as per the directions. If they have any unresolvable disputes, they file a fresh application to Review Services for assistance and potentially determination. Only then would a matter return to the Tribunal if the parties continued to disagree following the subsequent Review Officer’s decision. This case is unique in that it returned directly to the Tribunal for direction, because the Court of Appeal decided that it was the Tribunal’s responsibility to:

specify what procedures should be used to ensure that those employees, represented by the Unions, who have established pay equity through the proxy method, will continue to have access to male comparators to maintain pay equity.

18. The applicant in its August 24, 2021, submissions submitted that the Tribunal must determine that process in this case.

19. In any event, the attempt to characterize the November 23, 2021 decision as “interlocutory, does not explain why the applicant has not raised the issue it now seeks to argue, or did provide any of the information it now seeks to introduce until now. Furthermore, it does not explain why it has sought reconsideration and judicial review of the July 15, 2024 decision which is obviously a procedural decision, and is expressly referred to as “interlocutory” at paragraph 2 of that decision.

20. Once the parties completed the work from November 2021 to April 2023, the Tribunal issued a decision on May 19, 2023. In that decision, the Tribunal again referred to the issue as pay equity being “maintained using the proxy method” and “proxy comparators”:

21. Pursuant to the Tribunal’s direction contained in its November 23, 2021 decision, the parties advised the Tribunal that they have completed their pay equity process to the point where they require the Tribunal’s direction on the procedure they must use to ensure that pay equity has been maintained using the proxy method.

22. In its submissions the union relied on the Tribunal’s caution to the parties in its Participating Nursing Homes, 2020 CanLII 2058 (ON PEHT) decision that the Tribunal’s direction regarding the issue of pay equity maintenance using proxy comparators is an issue may not be isolated to those applications.

23. The Tribunal also agrees with the union and the employer that the Tribunal’s direction about how the maintenance process is completed using proxy comparators could have broad applications and implications for the community at large. As such, in the Tribunal’s view, it is prudent to provide the opportunity for any person or organization to seek intervenor status in this application to make submissions that they wish the Tribunal to consider about what procedure should be directed about how pay equity maintenance using proxy comparators should be completed in this case.

24. To be clear, the Tribunal has not determined that the process that is to be used with respect to pay equity maintenance using proxy comparators in this application will be the process directed by the Tribunal in other applications that proceed before it. However, it may be that the process directed in this application will provide valuable insight into how this process should be done in subsequent applications.

25. Accordingly, the Tribunal will post the attached Notice to the Community on its website. Any person or organization that wishes to seek intervenor status in this proceeding shall do so in accordance with the Notice to the Community by no later than July 7, 2023. Any intervention will be limited in content to setting out the reasons why the person or organization asserts that they should be granted intervenor status, and the reasons why they believe they have information or knowledge that could assist the Tribunal with respect to how pay equity maintenance should be completed using proxy comparators.

… Appendix A – Notice to Community

The Tribunal will issue a decision setting out which persons or organizations will be granted intervenor status on the issue of what procedures the Tribunal should direct to ensure that the parties continue to have access to male comparators using the proxy method.

21. The applicant did not raise any issue to the Tribunal that the May 19, 2023, decision had incorrectly characterized the procedural directions that the Tribunal would be making. The Notice to the Community was sent out accordingly.

22. On July 10, 2023, the Tribunal issued a decision that identified organizations/entities which filed requests to intervene in this matter. At paragraph 3, the Tribunal wrote:

Pursuant to the Tribunal’s direction contained in its May 19, 2023, decision and the corresponding Notice of Community, the Tribunal received several requests to intervene on the issue of how the pay equity maintenance process should be completed using proxy comparators.

23. Again, the applicant raised no concerns to the Tribunal about the issue which the Tribunal was seeking submissions on.

24. On September 15, 2023, the Tribunal issued a decision setting out the process for receiving submissions about the scope of the intervenors. At paragraph 3, of that decision, the Tribunal wrote:

Pursuant to the Tribunal’s direction contained in its March 19, 2023, decision and the corresponding Notice of Community, the Tribunal received several requests to intervene on the issue of how the pay equity maintenance process should be completed using proxy comparators in this proceeding.

25. The applicant did not object or otherwise raise concerns to any of the requests to intervene. As such, the applicant remained silent while the Tribunal considered the requests to intervene from nine entities based on the understanding that they would be making submissions about “how the pay equity maintenance process should be completed using proxy comparators”. This was not surprising to the Tribunal as it was consistent with the positions applicant had taken to this point and its conduct throughout the proceeding.

26. On February 29, 2024, the Tribunal issued a decision in response to a request from an intervenor to have additional time to review documents. In that decision, the Tribunal reiterated what the submissions pertained to:

27. In my view, the documents provided to the parties can provide information with respect to their submissions (that have yet to be ordered) on the issue of how the proxy method should be used in the pay equity maintenance process. Another intervenor has already filed its submissions without the benefit of reviewing the documents provided.

28. Again, the applicant did not raise any concerns with how this was characterized. If the applicant’s position was that it had internal male comparators such that the proxy method of comparison was not required, given that this issue was squarely before the parties, those facts would have or ought to have been pled at some point between when the Review Officer contacted the Employer in 2016 and February 29, 2024.

29. As such, the Tribunal rejects the applicant’s submission that it has not had the opportunity to provide submissions that the proxy method was not required in pay equity maintenance prior to the July 15, 2024 decision.

The Applicant Has Not Been Denied the Right to Make Submissions and to File Evidence

29. The Tribunal disagrees with the applicant’s suggestion that the Tribunal has “refused to entertain” evidence and submissions.

30. Conversely, the Tribunal has expressly provided the applicant with the opportunity to make any submissions it wishes the Tribunal to consider. At paragraphs 36 to 39 of the July 15, 2024 decision, the Tribunal wrote:

31. To be clear, the parties are entitled to make whatever submissions to the Tribunal that they wish it to consider. The Tribunal will consider all submissions before arriving at the process it directs. It will provide the appropriate weight to each of the parties’ submission as they are considered. Again, this is a unique process for the Tribunal where it is seeking submissions from the community about how it should determine a process that it was tasked by the Court to determine.

32. The Tribunal has been clear that it is not limiting the page length of the submissions. If the facts are not in dispute, for example, the fact that the 1995 $1.50 Plan was applied at this workplace, that the proxy method was used to establish the plan, that Glen Hill purchased the homes out of receivership in 2011, reference to the collective agreements between the parties, and the work on the amended plan that the applicant and respondent completed between November 2021 and April 2023, those facts can and should be stipulated.

33. Therefore, the applicant (and respondent, but it has not indicated that they wish to call viva voce evidence at this time) can attach whatever sworn witness statements they wish to their submissions to set out the fact situation at Glen Hill. Obviously, the persuasiveness of the witness statement can vary. For example, if the applicant provides a witness statement in attempt to introduce new facts about issues that have already been decided, the Tribunal will afford it the appropriate weight.

34. Since the applicant did not comply with Tribunal’s direction in its June 12, 2024 decision, and that the proposed nature of the evidence is to introduce fact evidence about issues that have already been decided, the Tribunal is not setting out any procedure for having these purported witness provide viva voce evidence or any cross examination. As set out above, the applicant can file sworn witness statements by the September 3, 2024 deadline to file their submissions. If any issues about cross-examination arise, the Tribunal can consider those issues based on the contents of any such witness statements.

[emphasis added]

31. The Tribunal expressly stated that it will consider all submissions and witness statements filed. The Tribunal has not found that any submissions, witness statements, or any other document is inadmissible. The Tribunal has been clear that it will consider the submissions in the context of the case. This includes all issues, including issue estoppel, as set out in paragraphs 36-39 of the July 15, 2024 decision above. All that the Tribunal has indicated is that submissions that raise issues that have already been decided, or submissions that involve factual or hypothetical situations that do not apply in this case, may be less persuasive to the Tribunal when it considers how to create the process the Court has instructed it to develop.

32. This includes deciding how the concept of estoppel/res judicata will apply to the submissions that are received. As of the date of this decision, the Tribunal has not yet considered any of the witness statements or submissions as the deadline has not yet passed and the parties have not made their oral submissions to the Tribunal for consideration. The applicant’s conclusions about the Tribunal’s statements in the July 15, 2024 decision are premature. If after receiving the decision regarding the Tribunal directed process for how the applicant and respondent are to complete their amended pay equity plan, the applicant continues to believe it has grounds to request reconsideration, that would be the time for it to exercise its prerogative to do so.

33. Since the July 15, 2024 decision is clear that parties can file all the submissions and statements they wish the Tribunal to consider, it is apparent to the Tribunal that the applicant’s complaint is more about the process ordered by the Tribunal as to how it will receive the submissions.

34. The Tribunal has the statutory authority to control its processes. Specifically, section 25.01(a) of the Statutory Powers Procedure Act, provides the Tribunal with express authority to “make orders with respect to the procedures and practices that apply in any particular proceeding”.

35. The Tribunal also has the statutory authority to make specific orders and directions about how it will receive evidence in any proceeding. Section 29(2) (e) and (g) of the Act state:

29(2)(e)

(e) may order a party to disclose such evidence and to produce such documents and other things as the Tribunal may specify before the commencement of a hearing;

29(2)(g)

(g) may in a hearing admit such oral or written evidence as it, in its discretion, considers proper, whether admissible in a court of law or not.

36. The issue that the Tribunal must consider at this stage of the proceeding is a novel one. The Tribunal has been tasked with creating a process with very little guidance from the Act, its Regulations, or the Court (after the Court overturned the Tribunal’s 2016 decision that the proxy method was not required for pay equity maintenance). There are now 11 parties involved and will be providing their submissions for the Tribunal’s consideration.

37. With respect to the applicant, it does not have the ability to dictate the Tribunal’s procedures. This is a unique case that requires managing several sets of submissions about an extremely complex issue in an efficient manner. The Tribunal made its determination about the procedure to provide all parties with an opportunity to tender their documents and make submissions in a manner that it deemed efficient for this circumstance.

38. Since the Tribunal received submissions from the parties about the scope of the interventions, it has been unclear to the Tribunal what fact evidence parties intend to provide for the Tribunal’s consideration. Accordingly, the Tribunal was open with the parties that it did not know what fact evidence they wish to have the Tribunal consider and provided deadlines for the parties to identify potential witnesses and setting out the nature of their expected evidence. This was so the Tribunal could consider how it would receive any expected evidence and the scope of each of the 11 parties’ ability to examine said witness, if that is necessary at all. The applicant did not identify a witness contrary to the Tribunal’s directions and as such, the Tribunal has not set a process to consider hypothetical, unidentified witnesses.

39. Notwithstanding the above, the Tribunal was clear in its July 15, 2024 decision that it has not limited the applicant in filing whatever witness statements it desires. The Tribunal was clear that if any such witness statements raise issues that require additional procedural considerations, it will do so if, and when that occurs.

40. The applicant attached an affidavit of Ruth McFarlane to the request for reconsideration. There is no explanation provided by the applicant, or in the affidavit, for why the applicant was unable to identify Ms. McFarlane as a potential witness prior to the deadline, and there are no explanations for why the facts, especially the situation that purportedly occurred around 2013 was not included in any of the materials filed by the applicant, including in the application, prior to August 2024. The Tribunal anticipates receiving Ms. McFarlane’s witness statement along with the applicant’s submissions. The Tribunal awaits the submissions about how the applicant believes the situations raised in Ms. McFarlane’s statement applies to the processes the Tribunal will direct.

41. How “changed circumstances” that have occurred post-retroactivity date (March 1, 2011 in this case), including but not limited to newly created positions, eliminated positions, changes to job duties and job descriptions, changes to compensation of male and female job classes, and changes in gender dominance of positions are all part of the extensive and complicated network of issues which the Tribunal anticipates receiving submissions about from all parties.

42. To repeat from previous decisions, the only issue that the Tribunal is considering at this stage of the process is solely about how it is to specify the processes and procedures that the applicant and respondent will undertake to ensure that pay equity has been maintained since March 1, 2011. The Tribunal is not deciding what the amended pay equity plan will be in these submissions. To exemplify, following the March 2025 submissions, the Tribunal is not going to be considering the submissions, and then ordering “Classification X to receive a pay equity adjustment of Y”. That level of detail is not, and will not, be available to the Tribunal at this stage of the proceeding.

43. The Tribunal will specify the process for how the applicant and respondent are to finalize their amended pay equity plan to ensure that pay equity has been maintained. Then the applicant and respondent will complete the process (just like they did between November 23, 2021, and April 2023 when they completed the steps internal to Glen Hill). The question of “how the applicant and respondent are to resolve any disputes between them that arise during this process?” is an issue that the Tribunal will also have to consider and determine into the eventually ordered procedure.

44. As the Tribunal has previously stated, it expects a range of considerably different viewpoints from the applicant, respondent, and intervenors. At this stage of the proceeding, the Tribunal has opened up the process to the community, and the role of the Tribunal is to receive all viewpoints, consider them, and to construct and direct a process for the applicant and respondent to follow that accomplishes the objectives of the Act.

Conclusions

45. The applicant’s request for reconsideration is denied. The applicant’s concerns raised in the request for reconsideration are premature. The Tribunal has not restricted the applicant’s ability to file any submissions or any witness statements that it wishes the Tribunal to consider. The Tribunal will consider all submissions and witness statements filed and has been clear that if further issues arise during those submissions which require additional processes, it will consider those issue in the context in which they arise.

46. It appears to the Tribunal that the applicant’s underlying issue in this case is with the conclusions in the Tribunal’s November 23, 2021, decision rather than the July 15, 2024, decision. The applicant’s objections are primarily focused on its belief that it will be limited in its opportunity to argue that the proxy method is not required in this case because of the Tribunal’s decisions made on November 23, 2021.

47. It is well beyond the period for requesting reconsideration of the November 23, 2021 decision. However, again, the Tribunal has made no final determinations about the process that it will ultimately direct the applicant and respondent to follow, and it will be considering all submissions in this case. The context provided by the history of this case can influence the persuasiveness of the various submissions, but without said submissions, the Tribunal has made no final determinations.

48. The timelines set out in the Tribunal’s May 15, 2024 decision are unaffected by this decision.

“M. David Ross” M. David Ross, Chair