(3) There is a significant inequality of bargaining power between
the appellant and Uber — a fact that Uber acknowledges.
(4) Given the answers to the first three elements, I believe that
it can be safely concluded that Uber chose this Arbitration
Clause in order to favour itself and thus take advantage of its
drivers, who are clearly vulnerable to the market strength of
Uber. It is a reasonable inference that Uber did so knowingly
and intentionally. Indeed, Uber appears to admit as much, at
least on the point of favouring itself when drafting the
Arbitration Clause. Its rationale in support of that favouring,
i.e., that it chose this particular arbitration process in order
to provide consistency of results, is an unpersuasive one.
 Consequently, all four elements of the Titus test for unconscionability are present in this case. It follows that, if the two-step
test found in Douez were to apply, it would also be met.
 It seems to me that the fundamental flaw in the approach
adopted by the motion judge to this issue is to proceed on the
basis that the Arbitration Clause is of the type involved in normal
commercial contracts where the parties are of relatively equal
sophistication and strength. That is not this case. As the majority
in Douez noted, “forum selection clauses often operate to defeat
consumer claims” (para. 62). The same can be said of the Arbitration Clause here — it operates to defeat the very claims it
purports to resolve. And I reiterate that this Arbitration Clause is
much more than just a simple arbitration provision.
 I would add that, for the purposes of this analysis, I do not
see any reasonable distinction to be drawn between consumers,
on the one hand, and individuals such as the appellant, on the
other. Indeed, I would note that, if Uber is correct and their drivers are not employees, then they are very much akin to consumers in terms of their relative bargaining position. Alternatively, if
Uber is wrong, and their drivers are employees, we are not speaking of employees who are members of a large union with similar
bargaining power and resources available to protect its members.
Rather, the drivers are individuals who are at the mercy of the
terms, conditions and rates of service set by Uber, just as are consumers. If they wish to avail themselves of Uber’s services, they
have only one choice and that is to click “I agree” with the terms
of the contractual relationship that are presented to them.
 Finally on this point, I should mention that the motion
judge, in coming to his conclusion, relied in part on my decision in
Kanitz v. Rogers Cable Inc. (2002), 58 O.R. (3d) 299,  O.J.
No. 665 (S.C.J.). Kanitz is entirely distinguishable from the situation here. First, in Kanitz, there was no evidence as to what the