Currently only designated judges of the Federal Court, and not the adjudicator presiding over the underlying proceeding, may conduct proceedings under section 38 of the Canada Evidence Act.
This issue speaks to the larger issue of bifurcation or non-bifurcation of such proceedings, which is quite complex. There may be an underlying proceeding with the power to compel the production of information where section 38 comes into play, which is not conducted by a judge, as was mentioned. This amendment would purport to invest those persons, such as administrative tribunal members, with the powers of a Federal Court judge under section 38, if they choose to conduct section 38 proceedings.
This would be a radical departure from the current regime, which restricts section 38 decision-making not only to judges, but to designated judges of the Federal Court.