of the right to have an ESO investigate his complaint. This is of
some importance for, among other reasons, if a complaint is made
then the Ministry of Labour bears the burden of investigating the
complaint. That burden does not fall on the appellant. Under the
Arbitration Clause, of course, the appellant would bear the entire
burden of proving his claim.
 I am aware that the appellant has not, in fact, chosen to
make a complaint under the ESA but rather has commenced this
proposed class action. That fact does not alter the analysis, however, for a few reasons. The first reason is that, if the Arbitration
Clause offends s. 5(1) because it contracts out of the investigative
process, the provision is invalid, irrespective of what the appellant does or does not do.
 A second reason is that it is the appellant’s right, under
the ESA, to avail himself of the “civil proceeding” exception to
the complaint process. It is his choice whether to take that route,
and he is only barred from making a complaint if he chooses to
take it. The Arbitration Clause essentially transfers that choice to
Uber who then forces the appellant (and all other drivers) out of
the complaints process. I reiterate that, in addressing this issue,
we are dealing not just with the appellant but with all persons
who might be in the same position as the appellant. The interpretative process must take that into account.
 A third reason is that this is a proposed class action. That
fact provides the obvious reason why the appellant is availing
himself of a civil proceeding over the complaint process. If the
class proceeding is certified, then the central issues will be determined, not just for the appellant, but for all persons who find
themselves in the same position as the appellant. It is well recognized that this is one of the central benefits of, and reasons for,
the Class Proceedings Act, 1992, S.O. 1992, c. 6.
 A fourth reason flows from the previous two and that is
that under the complaints process, and also under the proposed
class proceeding, the central issues will be determined for everyone who finds themselves in the same position as the appellant. If
the Ministry of Labour were to make a finding regarding the
appellant, it would be a public finding upon which others could
rely. The same is true through the class proceeding, if certified,
since any decision in that proceeding would be binding on the
members of the class (except for those who opted out). It is clear
that there is no ability for a class determination under the Arbitration Clause nor is any determination through the arbitration
a matter of public record upon which others can rely.
 A fifth reason is that there is no evidence in this record
as to what remedy the appellant could expect to obtain if he is