The position that private international law occupies in the Canadian constitutional framework is complex and evolving. Essentially, private international law is part of provincial law, which appears most clearly in the difference between the private international law of Quebec and that of the other provinces. But its location in the provincial sphere does not mean that provinces have unrestricted power to legislate with respect to the private international law applied in their courts. The ability to adopt rules with respect to jurisdiction, foreign judgments and choice of law are subject to increasing, albeit still vague, constitutional constraints. The Morguard case has probably set the direction for future development of the constitutional aspects of jurisdiction and foreign judgments, although it has not settled them definitively in any way. So far as choice of law is concerned the only relevant jurisprudence, which deals with when the subject matter of legislation can be said to be ‘in the province’, is highly unsatisfactory.
* Professor, Faculty of Law, University of British Columbia, Vancouver, Canada.