The question then becomes, if the appellant (and those like
him) is an employee of Uber, does the Arbitration Clause constitute a prohibited contracting out of the ESA If it does, then the
Arbitration Clause is invalid, the mandatory stay under s. 7(1)
does not apply, and the court may then deny a stay under s. 7(2).
 In determining that question, heed must be taken of s. 5 of
5(1) Subject to subsection (2), no employer or agent of an employer and no
employee or agent of an employee shall contract out of or waive an employment standard and any such contracting out or waiver is void.
(2) If one or more provisions in an employment contract or in another Act
that directly relate to the same subject matter as an employment standard
provide a greater benefit to an employee than the employment standard, the
provision or provisions in the contract or Act apply and the employment
standard does not apply.
 Under s. 1(1) of the ESA, an employment standard is
defined as follows:
“employment standard” means a requirement or prohibition under this Act
that applies to an employer for the benefit of an employee.
 As earlier noted, in his proposed class action, the appellant
contends that he and his fellow drivers are employees of Uber. If
they are employees, then they are covered by the ESA and are
entitled to the benefits provided by the ESA. Most importantly,
for the purposes of this matter, if they are employees, then they
are not bound by any contractual term that purports to oust
 Included in the benefits provided by the ESA is the right of
an employee to make a complaint to the Ministry of Labour that
his/her employer has contravened the ESA, pursuant to s. 96(1)
of the ESA:
96(1) A person alleging that this Act has been or is being contravened may
file a complaint with the Ministry in a written or electronic form approved by
 Only two restrictions on that right appear in the ESA. One
is in s. 98, which provides that an employee who commences
a civil proceeding may not concurrently make a complaint that
raises the same issue as the civil proceeding. The other is in
s. 99(2), which precludes an employee who is a member of a trade
union from making a complaint. The latter, of course, does not
apply to the appellant. With respect to the former, I do not accept
the submission of Uber that a civil proceeding includes an arbitration. There is no reason to interpret the term “civil proceeding” in that fashion. Indeed, the Courts of Justice Act, R.S.O.
1990, c. C.43, which applies to all civil proceedings in Ontario,