agreement is invalid.2 Here the appellant says that the Arbitration
Clause is invalid because it amounts to a contracting out of the
ESA that is, itself, prohibited by the ESA.
 It is not necessary, in deciding the issues raised, to determine whether the appellant (and others like him) are employees
rather than independent contractors. That is the core issue that
is to be decided in the action, if it proceeds. Rather, what must be
decided is whether the Arbitration Clause is invalid such that the
mandatory stay under s. 7(1) of the Arbitration Act, 1991 does not
 In determining that issue, I begin with the structure of the
Arbitration Act, 1991 to which I just referred. The structure of
the statute, on the issue of a stay of proceedings in favour of arbitration, is that a court must grant a stay unless one of the five
exceptions in s. 7(2) applies. If one of those exceptions applies,
then the court has a discretion whether or not to grant a stay.
 What is clear from the structure of the Arbitration Act,
1991 is that it is the court that is charged with making the
determination whether one of the exceptions in s. 7(2) applies so
that the issue of whether to grant a stay becomes a discretionary
decision, not a mandatory one.3 It is not the arbitrator who
makes that call, it is the court — a point that I will discuss in
more detail below.
 Turning to the exceptions then, it seems to me that one
must start with the presumption that the appellant can prove
that which he pleads, that is, that he is an employee of Uber. This
is a preliminary motion in a proceeding and, like many other
preliminary challenges to the court’s jurisdiction to entertain
a claim, the court normally proceeds on the basis that the plaintiff’s allegations are true or, at least, capable of being proven.
I note that this is the approach that was taken in Seidel where
Binnie J. said, at para. 8:
I should flag at the outset two issues that this appeal does not decide. Firstly,
of course, Ms. Seidel’s complaints against TELUS are taken to be capable of
proof only for the purposes of this application. We are not assuming the
allegations will be proven, let alone deciding that TELUS did in fact engage
in the conduct complained of.
2 Similar provisions are found in the ICAA.
3 The structure of the ICAA is essentially the same with the result that the
approach to the two statutes should be the same: Ontario Medical Assn. v.
Willis Canada Inc. (2013), 118 O.R. (3d) 241,  O.J. No. 5732, 2013
ONCA 745, at para. 26.