costs of initiating the arbitration process would be, nor evidence
that any particular customer had been dissuaded from arbitrating
because of the expense. The arbitration provision in Kanitz
required the arbitration to proceed where the consumer resided
and on mutually agreeable terms. Consequently, there was no
evidence of any significant financial or geographic barriers to
initiate the arbitration process, as there are in this case. I would
also note that, subsequent to the decision in Kanitz, consumer
protection legislation in Ontario was amended to preclude arbitration in such situations.
 In the end result, for the reasons I have given, I conclude
that the Arbitration Clause is unconscionable and therefore
invalid. The invalidity exception in s. 7(2) of the Arbitration Act,
1991 again applies to the Arbitration Clause.
 I conclude that the Arbitration Clause amounts to an ille-
gal contracting out of an employment standard, contrary to
s. 5(1) of the ESA, if the drivers are found to be employees as
alleged by the appellant. I reach the separate and independent
conclusion that the Arbitration Clause is unconscionable at com-
mon law. On the basis of each finding, the Arbitration Clause is
invalid under s. 7(2) of the Arbitration Act, 1991. The remedy of
a mandatory stay has no application.
 The appeal is therefore allowed and the stay is set aside.
The respondent will pay to the appellant his costs of the appeal in
the agreed amount of $20,000, inclusive of disbursements and
 The parties did not make submissions on what should
happen to the costs of the motion should the appeal be successful.
If the parties cannot resolve that issue, they may make brief
written submissions. The appellant shall file his submissions
within 15 days of the date of these reasons and the respondent
shall file its submissions within ten days thereafter. No reply
submissions are to be filed and each party’s submissions shall not
exceed five pages.