Conflict between Affidavit and Viva Voce ("a matter of concern")

It's a complex topic, and it's important to get legal advice early to help avoid and/or manage these issues, but in the meantime, below are a couple of rulings. A lot could depend on the specific nature of the discrepancies and whether this raises concerns in regards to credibility, how the adjudicator analyzes this, etc.

1)

Sertic v Mergarten, 2017 ONSC 263 (CanLII), <https://canlii.ca/t/gwv8p>

"[7]               While the tenant raises issues regarding the bona fides of the landlord’s desire to occupy the premises for her own purposes, the Vice-Chair heard the evidence on this point, and was satisfied that was the intention of the landlord.  The tenant submits that that finding was not open to the Board because the landlord’s affidavit did not so state.  I am unaware of any legal principle that provides that the contents of an affidavit overrules the viva voce evidence heard.  While conflicts between the two are always a matter of concern, it is ultimately up to the trier of fact to decide what evidence they accept and what they do not.  The Board accepted the viva voce evidence of the landlord.  There is no basis for this court to interfere with his conclusion on the evidence that he heard."

2)

HOL-01388-17 (Re), 2017 CanLII 48748 (ON LTB), <https://canlii.ca/t/h530w>

"8.      The Tenant’s Legal Representative argued that the Landlord’s affidavit was lacking in detail and failed to confirm the reason the Landlord required the rental unit.  He went on to suggest the Board could not rely on the Landlord’s viva voce evidence and was restricted to only relying on the affidavit when determining whether the N12 notice and subsequent application was in good faith.

[...]

Affidavit evidence versus oral testimony;

11.   In Sertic v Mergarten 2017 ONSC 263 (CanLII) there was a conflict between the content of the Landlord’s affidavit and the viva voce evidence and the court found that it was up to the trier of fact to make the determination on what evidence is accepted.  The Divisional Court held:

While the tenant raises issues regarding the bona fides of the landlord’s desire to occupy the premises for her own purposes, the Vice-Chair heard the evidence on this point, and was satisfied that was the intention of the landlord.  The tenant submits that that finding was not open to the Board because the landlord’s affidavit did not so state.  I am unaware of any legal principle that provides that the contents of an affidavit overrules the viva voce evidence heard.  While conflicts between the two are always a matter of concern, it is ultimately up to the trier of fact to decide what evidence they accept and what they do not.  The Board accepted the viva voce evidence of the landlord.  There is no basis for this court to interfere with his conclusion on the evidence that he heard.  [At para.7]

12.   The matter before me differs in that there is no conflict between the affidavit and Landlord’s oral testimony.  However, the Tenant argues that the affidavit is vague and the Landlord’s viva voce evidence cannot be used to supplement the affidavit.  The Divisional Court’s ruling with respect to viva voce evidence applies equally in this instance.  The Tenant has failed to demonstrate that there is any legal principle preventing the contents of an affidavit from being supplemented by viva voce evidence. I find that I there is no principle in law that would restrict me from considering the oral testimony of the Landlord."

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