Her Majesty the Queen v. Barbara Booker and Emily Wyer, 2021 ONCJ 624

ONTARIO COURT OF JUSTICE

CITATION: R. v. Booker, 2021 ONCJ 624

DATE: 2021 05 17

COURT FILE No.: St. Catharines Court No: 2111-998-F19-0964-01

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

BARBARA BOOKER & EMILY WYER

Before Justice Peter C. West

Heard on January 25, 26, 27, 28, and 29, 2021 and February 1, 2, 3, 4 and 5, 2021

Reasons for Judgment released on May 17, 2021

Ms. E. Weis.................................................................... counsel for the Crown

Mr. V. Singh...................................... counsel for the accused Barbara Booker

Mr. T. Jamieson...................................... counsel for the accused Emily Wyer

WEST J.:

1. Introduction

[1] Barbara Booker and Emily Wyer are charged with fraud over in respect of cheques drawn on the Trust and General accounts of the law firm of Richard A. Nabi & Associates. Barbara Booker is also charged with utter forged document in respect of a divorce order for Yanet Diaz, a client of Richard Nabi. The matter commenced on February 10, 2020, when a defence Charter application for a stay pursuant to s. 24(1) was commenced. On February 11, 2020, Mr. Singh advised he was abandoning the stay application but wanted to set court time to bring a third party records application prior to the trial, which was set for 10 days in June 2020.

[2] A telephone conference call was arranged with all counsel and me on February 25, 2020, where it was indicated by counsel the third party records application was likely to be sorted out and not require a hearing. Shortly after this telephone conference the COVID-19 global pandemic struck, and the date set for the third party records application in April 2020, and the June 2020 trial dates were adjourned as a result of all Ontario Court of Justice courts ceasing operations for an extended period of time.

[3] The third party records application was set for an in-person hearing in St. Catharines courthouse on November 20, 2020. Mr. Singh was seeking a letter he believed was missing from the correspondence between Mr. Nabi and Ms. Morgan. Scott Hutchinson, counsel for Barbara Morgan, who acted for Gary Dungey, the son of Sandra Wendler, provided the single letter sought by Mr. Singh and Mr. Hutchinson was excused from attending the application. Joanne Birenbaum, counsel for Richard Nabi, responded to Mr. Singh’s application for disclosure of Richard Nabi’s appointment diaries for the years 2013 and 2014. Ms. Birenbaum reviewed the two appointment diaries and provided the pages of the diary reflecting five scheduled appointments between Mr. Nabi and Yanet Diaz in 2013. Ms. Birenbaum advised there were no appointments reflected in the 2014 diary between Ms. Diaz and Mr. Nabi. Ms. Birenbaum advised in her response to the third party records application that she was not prepared to provide the entire 2013 and 2014 appointment diaries because of solicitor/client privilege, as the vast majority of entries in the diaries related to other clients of the law firm. She also indicated that Mr. Singh had been advised at a judicial pre-trial on July 25, 2020, that there were no appointments reflected between Mr. Nabi and Emily Wyer in either of the diaries. Ms. Birenbaum was told by the Crown and Mr. Singh she did not have to attend the November 20, 2020 court date and as a result did not attend.

[4] Mr. Singh was seeking the entire Sandra Wendler file in the possession of Margaret Hoy, who was the lawyer Mr. Nabi transferred Ms. Wendler’s file to. Ms. Hoy advised she had copied the correspondence and applications from Ms. Wendler’s files and made copies, which she would bring to court to provide to the parties and to the court. In addition, she had a group of documents she believed were either copies of the correspondence she had copied or were documents for which solicitor/client privilege would attach. It was agreed by the parties on November 20, 2020, that I would review this additional bundle of documents that was put into an envelope and if I found any documents I believed should be disclosed I would forward copies to all parties.

[5] Prior to the commencement of the trial, scheduled to begin from January 25, 2021 to February 5, 2021, a further telephone conference call was arranged between all counsel and me to discuss how the trial would proceed given the recent lockdown imposed by the provincial government as a result of a second wave of COVID-19. I advised counsel I had reviewed the bundle of documents left with me after the Third Party Records Application and I determined they contained copies of correspondence already disclosed by the Crown or contained in the file provided by Ms. Hoy on November 20, 2020. There were some additional documents I advised were not relevant to the issues in the case or in my view were covered by solicitor/client privilege relating to matters not relevant to the defence position.

[6] The Crown requested during this telephone conference that the trial be conducted by way of Zoom having regard to the provincial lockdown imposed by the government. Both the Crown and I were travelling from the Greater Toronto Area and staying in hotel accommodation or Airbnbs was not likely to be permitted or could be potentially dangerous. Mr. Singh indicated his client wanted an in-person hearing and he was requesting that at the very least Richard Nabi and Kristopher McEvoy testify in-person. The Crown advised she would be bringing an application to have all Crown witnesses testify by Zoom. Ms. Weis brought such an application. Mr. Singh advised he would have further discussions with his client, and he would advise if his position changed. Mr. Jamieson on behalf of Ms. Wyer indicated he was joining in the Crown’s request that the trial be held by Zoom, given some medical issues facing his client and he was content that all witnesses be heard by Zoom.

[7] On January 25, 2021, the trial commenced, and I made an Order for all of the Crown’s evidence to proceed by way of Zoom. The Crown began her case and dealt with witnesses related to the charge of utter forged document. Mr. Singh advised shortly after the trial began that Ms. Booker had given him instructions for the trial to be completely by Zoom, although he left open the possibility that his client might want to testify in-person.

[8] The trial was heard completely by Zoom. Ms. Weis was very proficient with the Zoom platform and assisted both defence counsel by sharing documents they wished to show witnesses on Zoom. I also wish to acknowledge my court clerk, Holly McPherson, who was particularly adept and competent in making the Zoom trial proceed smoothly and seamlessly.

[9] The trial continued for 9 days, one day was lost as a result of an illness affecting one of the defendants. The Crown called seven witnesses and Ms. Booker testified on her own behalf. No other witnesses were called by Ms. Booker and Ms. Wyer elected not to testify or call any witnesses. The matter was adjourned for counsel to provide written submissions, which were provided.

[10] These are my reasons for judgment based on the totality of the evidence.

2. Position of the Parties

[11] It is the position of the Crown that Barbara Booker provided Emily Wyer close to $100,000 in cheques (140) from February 14, 2013 to August 29, 2014. Almost all of these cheques were cashed by Ms. Wyer at a Money Mart within walking distance of Richard Nabi’s law office where she picked up the cheques from Ms. Booker. It is the Crown’s position Ms. Booker’s evidence that Mr. Nabi instructed her to issue over $60,000 in cheques to Ms. Wyer over a 15 month period, prior to the receipt of any funds relating to Ms. Wyer’s brother’s estate and then further authorized additional cheques in excess of $38,000, is completely preposterous and illogical. In excess of $185,000 was the total amount paid to Ms. Wyer and her other family members apparently entitled to proceeds from this estate, whereas only just slightly over $113,000 was received in life insurance proceeds. The Crown points to the fact that Ms. Wyer, during this period of time, immediately cashed almost every cheque at this Money Mart on the same day she picked them up from Ms. Booker at Mr. Nabi’s law office. Only these cheques were cashed by Ms. Wyer at Money Mart during this 18 month period. The Crown argues this pattern and the amount of cheques belie any legitimate purpose. The Crown also points to the fact Mr. Nabi never met Ms. Wyer, which is confirmed by the lack of any entries in his appointment book and the lack of any client file for Ms. Wyer.

[12] The Crown submits the Toronto Superior Court file respecting Emily Wyer’s application to become Kyle Wyer’s estate trustee was prepared entirely by Barbara Booker. Ms. Booker removed Mr. Nabi’s email address from the firm’s letterhead and advised the Superior Court to contact her at her email, barb_booker@yahoo.ca. The Crown argues the reason this occurred is clear: Mr. Nabi had no knowledge of Ms. Booker’s dealings with Emily Wyer and he did not authorize these cheques to be paid to Ms. Wyer.

[13] With respect to Emily Wyer, the Crown submits that she was the estate trustee, appointed in April 2014, of her brother, Kyle Wyer’s estate. The significant number of cheques provided to her by Ms. Booker, prior to her appointment as estate trustee, drawn on the Trust and General accounts of Richard Nabi’s law firm before any money was received from her brother’s life insurance leads irresistibly to only one reasonable inference, which is, Ms. Wyer knew, or was at least wilfully blind to, the unauthorized nature of the cheques paid to her.

[14] It is the Crown’s submission the fraud over charge has been proven beyond a reasonable doubt in respect of both of the defendants.

[15] The Crown further submits there is no dispute Barbara Booker told Ms. Diaz she was divorced and provided her with the fake divorce order. The Crown submits the evidence demonstrates that Ms. Booker knew it was a fake, as she knew the initial paperwork applying for the uncontested divorce had just been filed. The evidence proved Ms. Booker knew service on Ms. Diaz’s husband was required, a second filing had to be completed and a second fee had to be paid, as well as other prerequisites, before a divorce could be granted. She knew none of these requirements had been met, yet she made the accounting records appear as if they had. It is the Crown’s submission that the charge of utter forged document against Ms. Booker has been proven beyond a reasonable doubt and she should be convicted.

[16] Ms. Booker’s position is that Mr. Nabi was fully aware Emily Wyer was his client and was entitled to proceeds from her late brother’s estate. It is Ms. Booker’s position Mr. Nabi authorized her to prepare cheques to Ms. Wyer from both the Trust and General accounts despite the fact no money had been received respecting Kyle Wyer’s estate. It is her position Mr. Nabi was using monies that were provided to his firm on behalf of another client, Sandra Wendler. It was her position Mr. Nabi was continuously engaged in impropriety respecting his Trust account. Mr. Singh submitted Mr. Nabi had a “clear, strong and proven motive to fabricate evidence,” in order to escape civil (and possibility criminal liability),” which resulted in Ms. Booker and Ms. Wyer being charged.

[17] It was the position of the defence the evidence repeatedly illustrated Mr. Nabi “controlled, edited and limited the evidence available to his accountant, the police and the defence. It was Mr. Singh’s position Mr. Nabi had been able to open PC Law prior to providing it to Mr. Gilmour and Mr. Rose and the defence alleges Mr. Nabi edited and deleted and altered entries respecting the files relevant to this case. With respect to the utter forged documents charge Mr. Singh argues that the main issue to be determined is whether Ms. Booker knowingly uttered the fraudulent Divorce Order. It is Ms. Booker’s position she was provided the Divorce Order from either Ms. Baer or Mr. Nabi and she had no idea it was a fake. Mr. Singh submits the evidence falls short of the proof beyond a reasonable doubt necessary to find Ms. Booker guilty.

[18] It was Mr. Singh’s submission Ms. Booker’s evidence should be accepted and she should be acquitted of both charges. If Ms. Booker’s evidence is rejected, Mr. Singh argues the evidence presented is more than sufficient to raise a reasonable doubt and Ms. Booker should be acquitted of both charges.

[19] Mr. Jamieson submits if Ms. Booker’s evidence is accepted Ms. Wyer should be acquitted. He adopts Mr. Singh’s written submissions and submits there is “more than enough evidence to demonstrate Mr. Nabi was a deceitful, discreditable and unreliable witness with a motive to fabricate.” He further submits “there is more than enough evidence to establish that Ms. Wyer was a client” of Richard A. Nabi & Associates. Mr. Jamieson argues it is clear an application was made on behalf of Emily Wyer for a Certificate of Appointment of Estate Trustee Without a Will by Richard A. Nabi & Associates. He submits the Toronto Superior Court was explicitly dealing with Richard A. Nabi & Associates. It would be reasonable for Ms. Wyer to believe Mr. Nabi’s office was her solicitor regardless of who she was dealing with.

[20] Mr. Jamieson argues since Mr. Wyer was the estate trustee and entitled to funds from Kyle Wyer’s estate, “the dollar amount of the cheques, their frequency of when they were dispersed and where she chose to cash the cheques is irrelevant.” Mr. Jamieson also suggests an alternative explanation for the cheques paid to Ms. Wyer prior to any life insurance proceeds being received could have resulted from “a contractual agreement with the law office that was representing her to advance her payments and she was contractually bound to return those payments when the funds were received.” Finally, Mr. Jamieson submits “the test to convict Emily Wyer is high as she can only be convicted if the only reasonable inference to be drawn from the circumstantial evidence is that she is guilty.” He submits Ms. Wyer should be acquitted.

3. Applicable Law

a. Law relating to R. v. W. (D.) and R. v. Villaroman

[21] As in any criminal case, Barbara Booker and Emily Wyer are presumed innocent until proven guilty. I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some or none of a witness’ testimony. I have also reminded myself that the Crown must prove the essential elements of the offence beyond a reasonable doubt, as this term has been defined and explained by the Supreme Court of Canada in R. v. W. (D.).[^1] Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings.

[22] The onus remains on the Crown to prove Ms. Booker’s and Ms. Wyer’s guilt beyond a reasonable doubt throughout their trial. A reasonable doubt is a doubt based on reason and common sense, one that arises logically from the whole of the evidence or absence of evidence. I recognize that the rule of reasonable doubt applies to the issue of credibility. Accordingly, I must acquit the defendants if I accept their evidence or if it raises a reasonable doubt after considering it in the context of the evidence as a whole. If I reject their evidence, and it does not leave me with a reasonable doubt, I must go on to ask whether the evidence that I do accept convinces me of the guilt of the defendants beyond a reasonable doubt. In this case there are two defendants, Ms. Booker testified on her own behalf and Ms. Wyer chose not to testify. I must consider Ms. Booker’s evidence to determine whether I accept the evidence given or if I do not accept the evidence given, whether it raises a reasonable doubt in respect of the evidence as a whole. In respect of Ms. Wyer, she relies on Ms. Booker’s testimony and argues if I accept Ms. Booker’s evidence, not only should I acquit Ms. Booker, but I should also acquit Ms. Wyer. Further, I recognize even if I do not accept the defence evidence I must still consider all of the evidence I do accept to determine whether the Crown has proven the accuseds’ guilt beyond a reasonable doubt.

[23] A determination of guilt or innocence must not, however, devolve into a mere credibility contest between the Crown’s evidence and the evidence of each of the defendants. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D.);[^2] and Avetsyan v. The Queen.[^3]

[24] As the Ontario Court of Appeal in R. v. Hull,[^4] noted:

W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit the trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses.

[25] I must assess the evidence of the Crown and each of the defendants in light of the totality of the evidence, which includes and permits comparing and contrasting the evidence of those witnesses, other witnesses and the exhibits. The Court of Appeal in Hull continued:

However, such authorities do not prohibit the trier of fact from assessing an accused’s testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.

[26] Proof beyond a reasonable doubt means what it says. There is thus nothing illogical in rejecting a defendant’s evidence but still not being sufficiently satisfied by the other evidence to find that the case has been proven beyond a reasonable doubt. A state of uncertainty at a trial is not uncommon. Ultimately, if I have a reasonable doubt on the whole of the case that arises from the evidence of the Crown witnesses, the evidence of a defendant or the evidence of any other defence witness, or the absence of evidence, the charge must be dismissed: Lifchus.[^5]

[27] I have reminded myself that circumstantial evidence may or may not prove a fact from which an inference may be drawn, that is, a factual conclusion that logically and reasonably flows or may be drawn from that evidence. However, I have also reminded myself that the only inferences that may be drawn are those based solely on the evidence in this case, and that they may not and must not be based on conjecture or speculation. It is speculative to draw an inference when there is no direct or indirect factual or evidential basis to support it. However, it is the cumulative effect of all of the evidence that must meet the standard of proof beyond a reasonable doubt, not each individual item of evidence.

[28] More importantly, I have reminded myself that where the only evidence relative to a particular fact that is alleged is circumstantial evidence, before I can find the accused guilty on the basis of that evidence, I must be satisfied beyond a reasonable doubt that proof of the particular element of the offence, or guilt relative to the offence as a whole, is the only reasonable or rational conclusion or inference that can be drawn from the whole of the evidence. It is important to note that I do not need to be satisfied to that standard relative to each individual piece of evidence, particularly where more than one conclusion may flow from the particular piece of evidence under consideration. However, within the context of the evidence as a whole, I must be satisfied that the Crown has made out the elements of the offence beyond a reasonable doubt.

[29] Therefore, where the Crown relies upon circumstantial evidence to prove the essential elements of the offences beyond a reasonable doubt, the test, pursuant to R. v. Villaroman,[^6] is “whether the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence,” (see also R. v. Wu.[^7])

[30] Justice Cromwell, for the Court in Villaroman, cautioned in para. 30:

It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences . . . The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

[31] These are the principles I must use in my assessment of the totality of the evidence led during Ms. Booker’s and Ms. Wyer’s trial.

b. Fraud Over

[32] Section 380(1) of the Criminal Code of Canada provides:

Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service,

(a) is guilty of an indictable offence…where the subject-matter of the offence is a testamentary instrument or the value of the subject-matter of the offence exceeds five thousand dollars.

[33] In this case the Crown alleges the cheques written by Ms. Booker to Ms. Wyer amount to fraud against Mr. Nabi by other fraudulent means. In R. v. Olan, Hudson and Harnett,[^8] the Supreme Court of Canada held the words, “other fraudulent means” include not only means which are in the nature of a falsehood or deceit but also all other means which can properly be stigmatized as dishonest. Further, while the courts are loath to attempt an exhaustive definition of “defraud,” two elements are essential, dishonesty and deprivation. Deprivation is satisfied on proof of detriment, prejudice or risk of prejudice to the economic interest of the victim; it is not essential that there be actual loss.[^9] The Crown alleges Ms. Booker is the principal to this fraud and Ms. Wyer was a party under s. 21(1)(b) of the Criminal Code of Canada by doing anything for the purpose of aiding Ms. Booker to commit the fraud. The Crown alleges that Ms. Wyer aided the fraud by negotiating the unauthorized cheques and being the recipient of the ill-gotten negotiable instruments and converting them to cash.

c. Utter Forged Document

[34] Section 368(1) of the Criminal Code of Canada provides:

Everyone commits an offence who, knowing or believing that a document is forged,

(a) uses, deals with or acts on it as if it were genuine;

(b) causes or attempts to cause any person to use, deal with or act on it as if it were genuine

[35] The difference between the offence of forgery and the offence of uttering is use. Forgery is the making of a false document - uttering is its use. As Justice Hill summarized in R. v. Atwal,[^10]:

[95] A person commits forgery who makes a false document, knowing it to be false, with intent that it should in any way be used or acted upon as genuine, to the prejudice of another: s. 366 Criminal Code; R. v. Hawrish (1986), 1986 3208 (SK CA), 32 C.C.C. (3d) 446 (Sask. C.A.), at pp. 450-454. A document is "false" where a "material part... purports to be made by or on behalf of a person...who did not make it or authorize it to be made": s. 321 of the Code; R. v. Nousci (1991), 1991 7238 (ON CA), 69 C.C.C. (3d) 64 (Ont. C.A.), at paras. 16-49 (leave to appeal refused [1992] S.C.C.A. 69). A person who uses or utters a forged document, knowing or believing that the document is forged, commits an offence contrary to s. 368 of the Code. While the crime requires an intent to deceive, it does not require an intent to defraud or to cause prejudice: R. v. Valois, 1986 55 (SCC), [1986] 1 S.C.R. 278, at pp. 282-3; R. v. Sebo (1988), 1988 ABCA 200, 42 C.C.C. (3d) 536 (Alta. C.A.), at p. 540 (leave to appeal refused [1988] S.C.C.A. No. 309).

4. Factual Background and Findings of Fact Respecting Fraud Over

i. Richard A. Nabi and Associates law practice: Relationship Between Richard Nabi and Barbara Booker and Division of Responsibilities for Each

[36] Richard Nabi was called to the bar in 1986 and practiced as a barrister and solicitor until he retired on December 31, 2014. He initially was hired to work for the Ministry of the Attorney General Employment Standards Branch where he worked for a year. He then joined a St. Catharines law firm where he practiced for three or four years. He 1991 he began working with another lawyer in Fort Erie in a two-man partnership. In 1995 he opened his own firm, Richard Nabi & Associates, practicing on his own and with various associate lawyers until his retirement on December 31, 2014. From 1997 or 1998 he shared space with another lawyer, Michael George, until he retired. He had a general practice, doing a lot of mental health duty counsel work, some family law in terms of uncontested divorces, separation agreements and independent legal advice regarding those matters. He did some criminal work as duty counsel and also did a fair amount of real estate transactions and estate work, which involved doing client’s wills and power of attorney. In the years 2013 and 2014 he practiced as a sole practitioner and had no associate lawyers working at his law firm. Mr. Nabi was the President of the Fort Erie Bar Association for two or three terms and the President of the Welland County Bar Association for one term. His last secretary/law clerk was Barbara Booker, who also worked as his bookkeeper.

[37] Ms. Booker’s responsibilities included acting as a receptionist and answering phone calls. She performed normal secretarial duties such as handling the payment of expenses, setting up appointments for clients, filing reports necessary for the Law Society and LawPro, paying GST and HST, typing, opening files and preparing all cheques. She was also his bookkeeper, prepared all of the firm’s banking and accounting records using an accounting software program, PC Law. Ms. Booker described preparing all of the bank deposits slips for cheques received by the firm. She was trained as a law clerk and would often look things up in terms of court application procedures, which according to Mr. Nabi, she did perfectly. She was employed by him for approximately 13 years, starting in 2002, up to his retirement.

[38] Mr. Nabi testified he had an excellent relationship with Ms. Booker and trusted her fully and completely, as if she were a partner in the practice. She was diligent, very pleasant and he received many compliments from clients about her over the 13 years she worked in his law firm. There was one occasion when there was a problem with the banking books, Ms. Booker told him the bank made a mistake and this was what had happened, and the bank corrected their mistake. Mr. Nabi testified after this incident he never questioned Ms. Booker’s judgment. Ms. Booker was completely responsible for his law firm’s accounting, entering monies received from clients, monies received on behalf of clients, expenses paid, into the accounting records. She prepared all of the firm’s accounts or invoices to clients from PC Law and dockets filled out by Mr. Nabi if it was an hourly fee file as opposed to a block fee file.

[39] Mr. Nabi had advised Ms. Booker about a year in advance that he intended to retire at the end of 2014. He also had a part-time employee, Michelle Horn, and he wrote excellent letters of reference for both Ms. Booker and Ms. Horn.

[40] Ms. Booker gave a diametrically and totally different version of her time working for Mr. Nabi. She described Mr. Nabi as being “very charming” and “gentlemanly” if he was in a good mood but he could also be very miserable and difficult, and he acted as though he was superior to her. She said he never treated her like a partner, he treated her like staff and gave her instructions. She learned early on not to question him and just do what he asked her to do. He was aggressive in his language. She testified she felt sick going to the office. She remained there initially because she needed the money. She developed problems with her eyesight such that she could not drive, and it would be difficult to find another job as there were only nine lawyers in Fort Erie. She felt trapped in her job. She testified she worked from 9 a.m. to 5 p.m. and did not want to stay past 5 p.m. as she did not feel comfortable being alone with Mr. Nabi.

[41] Exhibit 21 A and 21B are documents pertaining to Mr. Nabi’s evidence. Tab 1 is a diagram prepared by Mr. Nabi of the layout of the offices at 362 Mather Boulevard, Fort Erie, he and Mr. George shared. This address was a house converted into offices. When a person walked through the front door Ms. Booker’s desk was immediately to the left off the hallway. Mr. George’s secretary’s desk (Ms. Hartley) was just beyond Ms. Booker’s, with an opening between them, also to the left. There was an area behind the two desks where there were filing cabinets for the two law firms, where files and accounting records were kept. There was also a desk with a computer in an alcove in this area where Ms. Booker testified Shirley Speight worked. She was the bookkeeper, who worked primarily for Mr. George but also did Mr. Nabi’s bookkeeping when Ms. Booker first started in November 2002. A counter was set up on a wall close to Ms. Booker’s desk where materials for clients would be left to be picked up.

[42] Mr. Nabi’s office was further down the hall from the front entrance, past where Ms. Booker’s and Ms. Hartley’s desks were situated. The entrance to Mr. Nabi’s office opened into a hallway, leading to a washroom, which was to the right of the main hallway coming from the front entrance. Mr. George’s office was just beyond Mr. Nabi’s office and its entrance was into the hallway from the front entrance just before a small waiting area with 4 chairs. Across from Mr. George’s office was a kitchen area where there were stairs leading to the basement, which was used for storage and further down the main hallway were double doors leading to a board room at the back of the building. Mr. Nabi testified his office had two windows that were mostly blocked by the built-in upper shelves and cupboards of his modular desk. He could not see the outside from inside his office. The remaining upper portion of these windows not blocked provided outside light into his office.

[43] Ms. Booker was responsible for writing up both the General and Trust account cheques for the firm. She had signing authority on any cheque, in any amount, to be drawn on the General account, as did Mr. Nabi, although none of the General account cheques filed in evidence contained Mr. Nabi’s signature. Only Mr. Nabi had signing authority on the Trust account. Ms. Booker kept both cheques books in her desk as she was responsible for preparing them. Mr. Nabi testified he was particular about cheques being typed on the Trust account or Certified cheques and would not approve cheques being sent out with corrections. Ms. Booker confirmed this idiosyncrasy of Mr. Nabi.

[44] Mr. Nabi testified that Ms. Booker assumed responsibility for doing the bookkeeping for his firm from a very early time in her employment. When she took on this responsibility she recommended he purchase a law firm accounting computer software system called PC Law. He understood from Ms. Booker that her husband taught PC Law at the college. Mr. Nabi testified he did not have PC Law installed on his computer and he never accessed it while he was practicing law.[^11] Mr. Nabi testified he trusted Ms. Booker completely and it was her sole responsibility to do the accounting, prepare the client ledgers, balance the books and prepare invoices for the work done on behalf of clients by the firm. He knew where Ms. Booker kept the password for PC Law, it was in the top drawer of her desk. He never opened PC Law to look at the accounting records, as he relied on Ms. Booker to enter all of the expenses, the General and Trust cheques, prepare accounts and enter all of these things into PC Law. He testified he did not know how to use PC Law.

[45] The Trust account was where clients’ monies were deposited, such as retainers for fees, real estate transactions or monies sent by another lawyer for a client because of a payout on an estate, to name a few examples. All of these monies received on behalf of a client were put into the client’s Trust account, it was not the firm’s money. Ms. Booker handled the responsibility of the bookkeeping and entering transactions into PC Law. Originally Mr. Nabi testified he utilized the services of Mr. George’s bookkeeper who sat at the spare desk (Shirley Speight) and she did Mr. Nabi’s and Mr. George’s bookkeeping. However, as she got older Mr. Nabi described how she only wanted to do Mr. George’s books and that was when Ms. Booker took on the bookkeeping responsibilities. Ms. Booker described taking over the bookkeeping responsibilities a year or two after she started working for Mr. Nabi, as a result of a spot audit by the Law Society when Mrs. Speight indicated she no longer wished to do Mr. Nabi’s books. This was when Ms. Booker took over the bookkeeping responsibilities sometime in 2003. Ms. Booker described the accounting books and records to be in a mess when she took over from Ms. Speight. Mr. Nabi testified he did not review Ms. Booker’s work respecting the maintaining of the bank accounts but came to trust her completely.

[46] Ms. Booker agreed she recommended the PC Law program to Mr. Nabi as the computer program to do the accounting records for the firm shortly after she took over the bookkeeping duties from Ms. Speight.

[47] After he retired on December 31, 2014, Mr. Nabi left it to Ms. Booker to close the firm’s books, as well as the firm’s bank accounts. Ms. Booker was working for Michael George after Mr. Nabi retired and she also continued doing bookkeeping work for Mr. Nabi in 2015 up until sometime in June, as she was in the process of closing Mr. Nabi’s books and accounts and finishing his taxes. There is a typed message dated April 14, 2015, to Pen Financial Credit Union requesting confirmation of the closing of Richard A. Nabi’s Trust account and signed Barb. According to Ms. Booker, Mr. Nabi did not have any set policy or expectations for what needed to be entered in the Memo line on General account cheques. It was Ms. Booker’s evidence that Mr. Nabi did not establish how those cheques should be recorded in PC Law, which meant she was free to provide her own explanations. Interestingly, Ms. Booker did put descriptions into the Memo line on the vast majority of the General account cheques she wrote, with only a few exceptions, unless it was a General account cheque written in favour of Emily Wyer. In her evidence Ms. Booker testified she was not aware she had not put descriptions into the vast majority of the Memo line for General account cheques she wrote for Emily Wyer. Almost every Trust cheque written in favour of Emily Wyer (only two where nothing was noted) had in the Memo line, “RAN 4466,” “4466,” or Estate of Kyle Wyer.”

[48] Ms. Booker was to finish closing the accounting records for Mr. Nabi’s practice and determine what his taxes were by June 15, 2015. When this did not occur Mr. Nabi testified he obtained the work Ms. Booker had completed, obtained her computer back from her and enlisted Ms. Horn’s assistance to get the records needed for his accountants to close his books and complete his taxes. He testified he was upset that Ms. Booker had not done what she said she would do. Ms. Horn provided assistance in getting the correct records to his accountants and his taxes were filed, although he had to pay a penalty.

[49] Mr. Nabi provided the following description of how cheques would be written to clients from the Trust or General accounts of his firm. Cheques would only be issued to clients where a real estate transaction occurred, and money came into the Trust account from the sale. Sometimes money would be transferred to the General account so cheques could be written for taxes or utility arrears and fees, with the remaining amount in Trust going to the client by cheque. Clients would be provided Trust cheques if the firm was holding money for them for some reason. Mr. Nabi testified it never happened in his firm where monies would be advanced to a client if there was no money being held in the Trust account on their behalf. He would never do that. Generally he would never pay rent for a client, although in Sandra Wendler’s case he did assist her in paying her nursing home fees, but other than Ms. Wendler this never occurred.[^12]

[50] There were blank forms for time dockets, which Mr. Nabi filled out respecting work done on files and Ms. Booker would enter these into PC Law so that accounts could be prepared. He kept these dockets in a client’s file and would provide them to Ms. Booker to prepare an account, which would be sent to the client with a covering letter. These would be left on his desk to sign. In other cases a set fee would be charged to the client for the work done. In some cases Ms. Booker would prepare all of the forms with a client necessary to proceed with a court application and in these cases there would be a set fee for her work that would be charged to the client. The deposits at the bank would be prepared by Ms. Booker, who would provide instructions with the deposit, and they were taken to the bank by Mr. Nabi, Ms. Horn or Ms. Hartley, Mr. George’s secretary, whoever was free to go to the bank or sometimes the husbands of Ms. Horn or Ms. Hartley would take the bank deposits to the bank if they happened to drop by the office to take their wives to lunch.

[51] Ms. Booker testified she initially was told by Mr. Nabi there was no bookkeeping required for her employment. However about a year after starting to work for Mr. Nabi, the Law Society advised they were going to conduct a spot audit. Shirley Speight was the bookkeeper and Mr. Nabi asked her to get the books in order and Ms. Speight refused to do them. Mr. Nabi asked Ms. Booker to do them. Ms. Speight provided her brief instructions and provided her the old One Rate system of bookkeeping she used. According to Ms. Booker this was how it started that she took on the responsibility of bookkeeping. Ms. Booker agreed she recommended to Mr. Nabi that he purchase PC Law for the accounting records for his firm and he followed her recommendation.

[52] Ms. Booker was responsible for opening the mail, taking care of anything that did not require Mr. Nabi’s attention and providing to him those things that required his attention. There was a main telephone number for the firm with extensions. Ms. Booker was the individual who first answered any telephone calls into Mr. Nabi’s office. Ms. Booker and Mr. Nabi had their own email addresses: barb_booker@yahoo.com and his was RickNabi@yahoo.com.

[53] Ms. Booker testified she would purchase two identical calendars or diaries in which she would post Mr. Nabi’s appointments with clients. She would also look in his book from time to time, to see if there were any appointments he had neglected to tell her about, which she would then post in the calendar she kept at her desk. When he was away from the office Ms. Booker would enter appointments she had made and would advise him of them when he returned. Mr. Nabi testified he never had appointments with clients he did not enter into his appointment book. Mr. Singh suggested to Mr. Nabi that he had removed from his appointment book all references to his meetings with Ms. Wyer; however, his appointment book was the subject of a third party records application by Mr. Singh and Mr. Nabi’s counsel, Joanne Birenbaum, provided pages from the appointment book showing appointments on specific dates when Mr. Nabi met with Ms. Yanet Diaz, whose divorce order is the subject matter of the other charge facing Ms. Booker. Ms. Birenbaum advised there were no appointments found in the appointment books relating to Emily Wyer. This information was provided to the Court and counsel and it was agreed by all parties that Ms. Birenbaum did not need to attend court on November 16, 2020 at the third party records application hearing.

[54] I am satisfied there were no appointments with Ms. Wyer entered in Mr. Nabi’s appointment book for the years in question, which leads to the reasonable inference that Mr. Nabi did not meet with Ms. Wyer and supports his evidence. If Mr. Nabi had removed from his appointment book any appointments entered respecting Emily Wyer it is my view this would have been readily apparent to Ms. Birenbaum who was representing Mr. Nabi on the third party records application and as an officer of the court Ms. Birenbaum would have been under an ethical obligation to bring this to the attention of the Court and counsel. This did not occur. Interestingly, in Mr. Jamieson’s written submissions he made reference on a couple of occasions that it would be reasonable for Ms. Wyer to believe Mr. Nabi’s office was her solicitor regardless of who she was dealing with and he referred to a concession made by Mr. Nabi in cross-examination that it was possible he met Ms. Wyer and she was introduced to him, as this sometimes occurred with individuals who were waiting in the waiting room as he passed by.[^13]

[55] Ms. Booker testified she was responsible for keeping the appointment books up to date. She testified on occasion some clients would walk in off the street and ask to meet with Mr. Nabi. If he agreed to meet with this type of individual then an appointment would not be entered in the appointment books. In her evidence Ms. Booker used this to explain why there were no appointments listed in Mr. Nabi’s appointment book for his first meeting with Ms. Wyer as she was a walk in client who came into the office looking for a lawyer. However, it was Ms. Booker’s evidence that Mr. Nabi had at least one further meeting with Ms. Wyer and possibly a third meeting, yet there were no appointments with Ms. Wyer reflected in the appointment diary. I will deal further with this issue in my analysis of the evidence relating to Emily Wyer’s Application to be appointed Estate Trustee.

[56] One of Ms. Booker’s responsibilities was to set up files for clients whose legal matters were being handled by the Nabi law firm. Notes of client interviews, court applications, forms, court documents or court orders, accounts, correspondence, originals or copies of the client’s documents and other miscellaneous documentation would be kept in a client’s file. Ms. Booker had filing cabinets in her area where current client files would be kept, along with copies of the accounting records and bank statements. As Ms. Booker completed closing the various files in late 2014 and early 2015 they were stored in the basement. There were no client files for either the Estate of Kyle Wyer or Emily Wyer located in the storage area (basement of 362 Mather Blvd in Fort Erie) where Mr. Nabi kept his files and other records after he retired. Ms. Booker testified she maintained a large accordion file folder for these two files, and they were left with all of the firm’s files when she finished working for Mr. Nabi in June 2015 after Mr. Nabi retired.

[57] Mr. Nabi testified he did not become aware of Emily Wyer’s name or file number until he was advised by Mr. McEvoy, who was investigating where the funds from the $125,000 cheque for Ms. Wendler had gone, of the Wyer name and file interacting with the Wendler file in the Wendler trust ledger. Mr. Nabi testified he could not recall that name, so he contacted Mr. George’s office from Florida, where he was living, to see if they could look for the Wyer file in the files stored in the basement at Mather Blvd. It is my view Mr. Nabi was not fully aware of the relationship between the Wendler file and the Wyer estate file or its significance when he requested Mr. George’s office to look for it, as he was in Florida. No file was found by Mr. George’s office, and no file was located when Mr. Nabi, upon his return to Canada after April 2018, attended himself to look in the basement for any file connected to the name Wyer. Further, I find there is no evidence establishing that Mr. Nabi had anything to do with this file not being located. This, in my view, leaves only one possible reasonable conclusion and that is that Ms. Booker did not put this accordion file she described keeping for Ms. Wyer’s case into storage in the basement.

ii. Emily Wyer

[58] Emily Wyer elected not to testify on the trial, so I have no information concerning her background or circumstances. I also do not have any evidence from Ms. Wyer as to whether she was interviewed by Mr. Nabi, what occurred during the occasions she met with Ms. Booker respecting the Superior Court application or attended the Nabi office to obtain her cheques from Ms. Booker, or what arrangement she had made with Mr. Nabi or Ms. Booker, if any, respecting the 140 cheques she received. Of course, Ms. Wyer does not have to testify as the Crown bears the onus to prove the charges facing her beyond a reasonable doubt. No evidence of any kind was led during this trial which demonstrated any pre-existing relationship between Emily Wyer and Richard Nabi. There was no direct evidence led showing a pre-existing relationship between Emily Wyer and Barbara Booker. Although I will discuss later in these reasons whether any reasonable inferences are available from the circumstantial evidence respecting Ms. Wyer’s relationship, if any, with Mr. Nabi or with Ms. Booker.

[59] Mr. Nabi testified he did not recognize the name Emily Wyer or Emily Landry as being a client and he did not recall ever meeting or seeing a person by that name. Ms. Wyer was spotlighted by the Clerk on Zoom at the Crown’s request and Mr. Nabi testified he had never seen Ms. Wyer before. Mr. Nabi did not recall Ms. Booker ever speaking to him about paying the rent for an Emily Wyer. As far as he knew he did not have a client who suffered from hepatitis C and skin cancer. Throughout Mr. Singh’s vigorous cross-examination he denied ever meeting with Ms. Wyer in his office concerning her brother, Kyle Wyer’s estate. He had no recollection of ever being provided London Life Insurance policies and paperwork and correspondence to apply for life insurance on behalf of Emily Wyer. He maintained he did not meet with Ms. Wyer on two or three occasions and provide information to Ms. Booker to prepare an application for Ms. Wyer to be appointed the estate trustee for her brother’s estate where there was no will. Mr. Nabi had no knowledge of Ms. Wyer, including that she was receiving monthly ODSP pension payments. He denied having any discussion with any individual about their concern of receiving an inheritance that would affect their ODSP payments. Mr. Nabi testified he never would have authorized paying Ms. Wyer money before money was received into trust. In fact, Mr. Nabi maintained it would be improper to advance money to a client on the future possibility of funds being provided by a life insurance policy.

[60] Mr. Nabi testified the first time he ever heard of Emily Wyer or Kyle Wyer was as a result of these proceedings. He had been involved in applying for estate trustees to be appointed in one or two cases in their local area, Welland County. He was not aware of ever applying to a Toronto court for the appointment of an estate trustee where there was no will. In the prior files he would not have allowed the distribution of funds on the estate prior to the estate trustee being appointed. If his firm was holding any funds in trust for the estate he would not have authorized any of those funds to be distributed before the estate trustee had been appointed. Mr. Nabi testified it was “absolutely impossible” he ever advised Ms. Booker to issue cheques to Ms. Wyer because monies had been received for Ms. Wendler and placed in trust, he would never had told Ms. Booker to do that.

[61] When Ms. Booker was asked if she knew Emily Wyer she said she knew Ms. Wyer as a client of the firm. Ms. Booker testified she did not have any personal relationship outside the firm with Emily Wyer. When she was further questioned if she ever met Ms. Wyer, Ms. Booker asked if the question could be asked differently, as she was not sure what Mr. Singh meant. Mr. Singh then asked if Ms. Booker ever met Ms. Wyer at the office to which Ms. Booker answered yes. Ms. Booker’s initial response to Mr. Singh’s question as to whether she ever met with Ms. Wyer in my view was curious because the question was a simple one and was not confusing.

[62] Ms. Booker denied knowing very much about Ms. Wyer, which in my view seems completely inconsistent with her evidence that Ms. Wyer attended the office at least on 140 occasions over 18 months to pick up the cheques Ms. Booker prepared. Further, Ms. Booker testified Ms. Wyer called her sometimes daily about her financial needs – rent, groceries, animal care – to name a few mentioned in Ms. Booker’s evidence. It is difficult to reconcile Ms. Booker’s attempt to distance herself from Ms. Wyer given the extensive amount of time she spent with Ms. Wyer over the 18 months she was preparing and filing Ms. Wyer’s application to become Estate Trustee for her brother (June 2012 until April 2014), providing her 140 cheques in person (One cheque in December 2012, then 139 cheques between February 2013 to August 2014), and talking to her repeatedly on the telephone (June 2012 to August 2014). She initially maintained she had not seen Ms. Wyer in person for the estate application yet when shown the affidavits from 2012, 2013 and 2014 she had to concede that was not true. She also saw Ms. Wyer on at least 130 occasions when she picked up her cheques, yet she maintained not knowing anything of substance about Ms. Wyer. Certainly Ms. Booker had discussed Ms. Wyer’s medical issues because she repeatedly referred to them in the letters sent to the Superior Court asking the application be expedited. As the Crown pointed out in the last two months Ms. Booker and Ms. Wyer were seeing each other every day. No explanation was provided by Ms. Booker as to the significantly increased frequency of the cheques being prepared by her for Ms. Wyer. Nor was any explanation provided for why the cheques abruptly stopped.

[63] Ms. Booker testified Ms. Wyer contacted the office because her brother had died, which was upsetting to her, as they were close, and Ms. Wyer advised Ms. Booker that she was aware there was an insurance policy and she wanted to find an estate trustee to proceed with her brother’s estate. Ms. Wyer was not a former client of the firm and Ms. Booker believed “she may have just walked in off the street and asked to see a lawyer.” This was why there was no entry in the appointment book for the first appointment, according to Ms. Booker.

[64] Ms. Booker created two files in PC Law relating to Emily Wyer. File 4466 was entitled “Estate of Kyle Wyer” and File 4477, “Wyer, Emily, various matters.” When Ms. Booker was asked why she created and maintained two separate ledgers in PC Law, she replied, “I don’t know.” She agreed neither of the ledgers were particularly accurate, as she often ended up putting in the wrong cheque number or date or payee. Ms. Booker agreed some days she wrote two cheques to Ms. Wyer but could provide no explanation.

[65] Ex 21(B), Tab 9, is a list of the cheques from both the Trust and General accounts of Mr. Nabi’s law firm relating to cheques payable to Emily Wyer (140 cheques [made up of 22 Trust cheques and 117 General cheques], as well as a General account cheque to Gwen Picard for rent listed as such in the accounting records) and five Trust cheques to Robert Wyer, Casey Sullivan, Kasey Wyer and Christopher Hicks. Exhibit 21(B), Tab 10 are copies of the cheques referred to above. No evidence, either documentary or viva voce was provided to explain the three trust cheques payable to Casey Sullivan, Kasey Wyer and Christopher Hicks.

[66] The total amount of all of these cheques is $185,574.26. A total of 83 cheques, commencing in December 2012, were issued from both the Trust and General accounts to Emily Wyer (in the total amount of $60,875.00) and two (2) Trust cheques to Robert Wyer ($38,806.26)[^14] before a London Life insurance cheque dated May 6, 2014, in the amount of $113,416.70, payable to Emily Elizabeth Anne Wyer, Estate Trustee of the Estate of Kyle Wyer, 220 Stanton Street was received and deposited to Richard A. Nabi and Associates Trust account. Ms. Booker had no recollection whether the cheque was sent to Ms. Wyer and she brought it to Ms. Booker, or it was received at the law firm. She believed it came to the office, but she could not confirm this fact. It is significant to note that prior to the London Life insurance cheque arriving, $99,681.26 had already been paid out to Emily Wyer and to Robert Wyer, leaving only $13,735.44 from the London Life insurance proceeds.[^15]

[67] A significant piece of evidence is Exhibit 21B, Tab 11, p. PF-421, which is a deposit slip to Fort Erie Credit Union Ltd, dated May 9, 2014, which shows Ms. Booker’s initials “BB” as being the depositor of this cheque. It was Ms. Booker’s position she did not make any deposits because she could not drive and she would enlist the assistance of Michelle Horn or Mr. Nabi or Ms. Hartley, Mr. George’s secretary to make the deposits at the bank. Ms. Booker denied making the deposit of this $113,416.70 cheque. However on the other deposit slip in evidence, the $125,000 Wendler cheque, the initials are MH, which reflects Ms. Horn made that deposit.[^16] In my view considering the totality of the evidence respecting bank deposits, there is a reasonable inference to be drawn that Ms. Booker in fact made this one deposit, which in my view becomes a stronger reasonable inference when considered with the other evidence demonstrating the large number of cheques provided to Ms. Wyer prior to the London Life cheque being received. The fact 11 cheques were written by Ms. Booker on the Trust account of 4466 payable to Emily Wyer, for a total of $10,300, and on the Trust account of 4500-a for a total of $58,806.26[^17], when no monies had been received for the Estate of Kyle Wyer, in my view this also strengthens this reasonable inference that Ms. Booker herself made the deposit of the London Life cheque because she knew and understood no monies should ever be paid out of the trust account to a client if there was not money deposited already.

[68] After the London Life cheque was received Ms. Wyer received a further 53 cheques from Mr. Nabi’s Trust and General accounts totalling $38,350.00 and 3 other Trust cheques to others in the Wyer family, totalling $45,000.00. Emily Wyer received a total of $99,225.00 from the Trust and General accounts. The Nabi cheques connected to the Wyer estate exceeded the London Life insurance proceeds by more that $80,000.

[69] Mr. Singh in his written submissions suggests there may have been other funds deposited into Mr. Nabi’s Trust account from other insurance proceeds or assets relating to Kyle Wyer. There was a second insurance cheque from London Life, dated May 8, 2014, in the amount of $362.93 (Exhibit 21B, Tab 12), payable to Emily Wyer. This cheque was dated 2 days after the $113,416.70 cheque was issued by London Life. The deposit slip (initialled by “MH” or Michele Horn) dated May 13, 2014, shows this cheque (London Life - $362.93) was deposited to 4466.[^18] However, this amount was not deposited into 4466, instead, Ms. Booker entered it into Sandra Wendler’s Trust account, 4500-a (Exhibit 33, p. 5). A further concern are two cheques also referred to on the same deposit slip, dated May 13, 2014, for $6,654.18 and $508.50 with the following description after each cheque amount of Wendler 4466. These two cheques were not provided in the evidence, so it is unknown where they were from, but the deposit slip seems to suggest they were “Wendler” cheques, which Ms. Booker indicates on the deposit slip are to be entered into Trust account 4466, which is not the Wendler Trust account file number. In the Estate of Kyle Wyer Trust ledger 4466 these two cheques are deposited but the London Life cheque is not (Exhibit 21B, Tab 13, p. 3). More irregularities disclosed in the PC Law records.

[70] In my view it would be pure speculation to suggest other monies were provided to Emily Wyer or the others who were provided monies from Mr. Nabi’s Trust and General accounts from other insurance proceeds or other sources. There is no evidence to support that submission and as a result I reject it. More importantly, the issue for me to decide is not whether Emily Wyer was entitled to money from the Estate of Kyle Wyer. Although Ms. Wyer was ultimately appointed estate trustee, this did not mean she was entitled to any proceeds from the estate. Ms. Wyer, as estate trustee would be required, as testified to by Mr. Nabi, to collect any assets of the estate, pay off any and all debts of Kyle Wyer and then distribute any remaining monies according to law, i.e. to those entitled to receive monies. The issue in this case is whether any money within the Nabi accounts were authorized to be paid to Ms. Wyer at the time that they were paid to her. Mr. Nabi was very clear that these payments were not approved and that he would never “lend somebody money on the speculation that she might get a life insurance policy.”

[71] I agree with the Crown’s submission that “Ms. Booker would be no different than the salesman in R. v. Théroux who lied about the existence of deposit insurance when promising to build residential homes for his customers. ‘[T]he appellant genuinely believed that the homes would be built and hence that there was no risk to the depositors. ‘No risk’ used in this sense is the equivalent of saying the appellant believed the risk would not materialize…. The fact that he sincerely believed that in the end the houses would be built and that the risk would not materialize cannot save him’: R. v. Théroux, 1993 134 (SCC), [1993] 2 S.C.R. 5, at paras. 24, 41 to 43.” [^19] Fraud is complete when deprivation occurs or the risk of deprivation, so it matters not whether monies are ultimately received covering the unauthorized cheques.

[72] The number and the amount of the cheques received by Emily Wyer do not accord with common sense and everyday life experience. The cheques payable to Emily Wyer ranged from as low as $200.00 to as much as $10,000.00.[^20] They were all round dollar amounts. Ms. Booker testified Emily Wyer would call her and request a cheque for groceries, for her rent, taking an animal to the veterinarian and she would specify the amount she needed. Ms. Wyer turned to Richard Nabi to provide funds to her to deal with her financial needs and Mr. Nabi agreed to pay these amounts, according to Ms. Booker’s evidence. As the Crown points out, most of the time the cheques were in excess of the salary paid to Ms. Booker or the weekly draw Mr. Nabi received[^21]. On nine occasions Ms. Wyer received two cheques dated the same day. In my view the payment of these cheques to Ms. Wyer before any monies were received is absolutely absurd and Ms. Booker’s explanation for why this occurred was Mr. Nabi told her to pay these cheques to Ms. Wyer, an individual he did not know, who had just walked into Mr. Nabi’s office off the street looking for a lawyer, and further, that he told Ms. Booker to use the funds received for the Sandra Wendler file, which he also told Ms. Booker were his funds, in my view is completely preposterous and unbelievable.

[73] Ms. Booker testified that Ms. Wyer called all the time with requests for money for different things and each occasion she would speak to Mr. Nabi who would authorize the cheque. When the Crown referred Ms. Booker to a Trust cheque written to Ms. Wyer on March 31, 2014, for $10,000, Ms. Booker could not recall what Ms. Wyer had said she needed $10,000 for. This cheque is not entered into the Estate of Kyle Wyer Trust account ledger, although the Memo line indicates “4466.” It is entered in the Wendler Trust ledger but on a different date, April 1, 2014. Ms. Booker had no recollection as to what Ms. Wyer said this cheque was for, nor could she provide any explanation why Ms. Wyer was requesting a $200 cheque dated April 2, 2014. The cheque number for this cheque entered into the 4466 Trust ledger is #5457 but the actual cheque number is #5455.

[74] The cheques were written sequentially from the same account or sometimes one was a Trust cheque and the other was from the General account and sometimes there were several other cheques written between the two cheques. Sometimes the cheque number entered into PC Law did not match the cheque number on the cheque and on occasion the amount of a cheque entered in the ledger did not match the actual amount on the face of the cheque. The Crown provided a calendar for 2013 and 2014 showing the days when cheques were written to Ms. Wyer and how the number of cheques per month increased over time, especially starting in October 2013. The monthly totals also increased, such that in March 2014 Emily Wyer received $15,800; in April 2014 she received $4,350; in May 2014 she received $20,300; in June 2014 she received $7,300, in July 2014 she received $10,000 and in August 2014 she received $12,600. There is no rational or logical explanation for these amounts being paid to Ms. Wyer.

[75] The cheques to Ms. Wyer stopped abruptly with the final cheque in the amount of $600, dated August 29, 2014. Ms. Booker could give no explanation for why Ms. Wyer stopped calling for money or why Mr. Nabi had stopped authorizing cheques to Ms. Wyer.

[76] As soon as Ms. Wyer received a cheque by coming to meet Ms. Booker at 362 Mather Boulevard by taxi, she would walk and cash the cheque she received at Money Mart, which was within walking distance from the Nabi office. With the exception of six cheques Ms. Wyer received, she cashed every other cheque at Money Mart and paid a fee for the privilege of receiving immediate cash. For an individual who received an ODSP monthly pension it does not accord with common sense or logic to go to the expense of taking a taxi and then paying a fee to cash 63 cheques that were only between $100.00 and $300.00, let alone the other 74 cheques between $400 and $10,000. Further, Ms. Booker testified the amount of the cheques needed to be low because Ms. Wyer was concerned about losing her ODSP pension cheque, but this did not accord with what actually occurred. Ms. Wyer had an alternative to the Money Mart for cashing her cheques, she used the Bank of Montreal in Fort Erie to deposit the six cheques she did not cash at the Money Mart. Ms. Wyer did not cash any other cheques she received from other sources at the Money Mart by Mr. Nabi’s offices in 2013 and 2014. In the four years after the Nabi cheques stopped Ms. Wyer only cashed 3 cheques at Money Mart. The Crown submitted there is an inference available that Ms. Wyer had a particular motivation to immediately cash these cheques she got from Ms. Booker at a financial institution close to where Ms. Booker worked.

iii. Allegations by the Defence that Richard Nabi Deleted or Removed Documents from the Superior Court File to Appoint Emily Wyer Estate Trustee Obtained by Mr. George’s Office

[77] Mr. Singh alleges that Mr. Nabi deleted or removed documents he received from Mr. George’s office respecting the file pertaining to Emily Wyer’s application in the Toronto Superior Court. Mr. Nabi, as I will discuss in more detail later in my reasons, first received information concerning Emily Wyer from the accountant, Kristopher McEvoy, he retained to examine his accounting records, relating to his client Sandra Wendler, from his firm’s PC Law records maintained by Ms. Booker.

[78] Mr. Nabi did not recall how he discovered the application for Emily Wyer to be appointed as the Estate Trustee of Kyle Wyer’s Estate was commenced in Toronto. He described in his cross-examination how he had discovered some blank forms from the back-up discs he created throughout his years of practice and that this could very well be how he gained this knowledge. He denied having anything to do with the application brought in the Toronto Superior Court. As he was no longer practicing law he asked someone in Michael George’s office to contact the court and request the file relating to Emily Wyer’s application. He testified when the documents were received by Mr. George’s office and given to him, he provided everything Mr. George’s office gave him to Detective May. He denied removing any documents from those he received from Mr. George’s office. No evidence was led as to what documents were provided by the court office to Mr. George’s office. In the covering letter from the Superior Court, dated August 9, 2018, (Exhibit 21B, Tab 15, BB299) there is no indication of how many pages were sent to Mr. George’s office. In my view, there is not sufficient evidence before me to conclude in these circumstances that Mr. Nabi removed any documents from the documents he received from Mr. George’s office. It is my view the defence allegation is pure speculation and no evidence was provided to establish Mr. Nabi removed documents. It is my view that none of the documents missing from what was provided to Mr. George’s office and what the Crown received at a later date proved Ms. Wyer was a client of Mr. Nabi. In my view, all either set of documents[^22] prove is that the law firm of Richard A. Nabi & Associates, from the prospective of the Toronto Superior Court, was representing Emily Wyer in her application.

[79] The fact that the Crown’s request for the complete court file relating to Ms. Wyer’s application in Toronto Superior Court produced additional documentation does not prove, as alleged by Mr. Singh, that Richard Nabi removed the affidavit of service signed by Michelle Horn (Exhibit 31, p. 5), his part-time employee. This document was sworn/affirmed by Ms. Booker, who was a Commissioner for taking Affidavits. The evidence was clear that Ms. Horn was a part-time employee of Mr. Nabi and Ms. Booker was within her sphere of responsibility to utilize Ms. Horn to assist her. The other additional documents provided to the Crown pertained to the Superior Court requesting from Ms. Booker, on numerous occasions, missing information that was required by the Rules. In my view these missing documents also do not prove Mr. Nabi removed them from what he had received, rather, in my view they demonstrate Mr. Nabi’s lack of any involvement in this application.[^23]

[80] It is my view when the Toronto Superior Court file is reviewed as a whole, together with the other evidence relating to the cheques provided to Ms. Wyer, it becomes abundantly clear the only individual involved with bringing this application was Barbara Booker. The initiating document of the application (Exhibit 31, pp. 2-3), dated June 25, 2012, had a number of corrections with initials BB and EW. The Crown pointed out that the information in this initiating document reflected Emily Wyer, Robert Wyer and Kyle Wyer all had the same mother, which would have meant they were half brothers and half sister, yet Emily Wyer and Robert Wyer were described as step-sister and step-brother of Kyle Wyer. This error is maintained throughout the documentation. In my view the most significant evidence proving Ms. Booker was handling this application was the fact she removed Mr. Nabi’s email address from the firm’s letterhead and instructed the Superior Court office to contact her directly. Further, any letters purported to be by Richard Nabi were signed by Ms. Booker as “Richard Nabi/bb” or with a script, which read, “Barbara Booker, law clerk,” or the letter was unsigned. Ms. Booker agreed in cross-examination that if the letter was signed “Richard Nabi/bb” or had a stamp “Barbara Booker, law clerk” this meant she had written those letters herself. Mr. Nabi’s signature cannot be found on any of the correspondence issuing from his office to the Court. Ms. Booker was also the only individual who commissioned the affidavits of Emily Wyer and witnessed signatures. She sent an undated note signed Barb to the Court apologizing for not filling out the forms with the correct information[^24] and indicated Ms. Wyer was ill in numerous letters asking for the matter to be expedited. The fact Ms. Horn signed an Affidavit of Service that was commissioned by Barbara Booker does not prove Mr. Nabi was involved in this application before the Superior Court in Toronto.

[81] Ms. Booker had been receiving the requests for corrections or additional information from the Court by regular mail up until October 23, 2013, when the court sent an email to Mr. Nabi at the email address indicated on the letterhead, ricknabi@yahoo.ca. In the November 25, 2013, letter written by Ms. Booker under Mr. Nabi’s name, Mr. Nabi’s email address has been removed from the firm’s letterhead[^25] by Ms. Booker. Ms. Booker wrote her email address on the top of the Richard Nabi letterhead on a letter to the Court dated December 9, 2013 and again Mr. Nabi’s email has been removed.[^26] The remainder of the letters sent to the Superior Court had Mr. Nabi’s email address removed from November 2013 to April 2014. When a second email was sent from the Court on December 20, 2013, Ms. Booker in a letter to the Court dated February 12, 2014, included her email address in the body of the letter with a request to email this address when the document package was ready for pickup.[^27]

[82] Mr. Nabi was requested by the Crown to check his Yahoo email account’s history to determine if there were any emails respecting Ms. Wyer from the Superior Court, and he testified he discovered there were none. Mr. Nabi provided a screen capture of the email listed in the time period of the Superior Court emails, which did not show the two emails sent by the Court.[^28]

[83] Mr. Singh argued Mr. Nabi’s email address was removed from a letter (Exhibit 28, p. 6.) he sent Gary Dungey[^29] directly. It is my view the removal of Mr. Nabi’s email from such a letter accords with common sense and logic as Mr. Nabi viewed Mr. Dungey as someone who was “slippery,” acting improperly as the estate trustee[^30] by his refusal to provide money properly owed to his mother, Sandra Wendler. In my view the removal of Mr. Nabi’s email address from a letter he sent directly to Mr. Dungey because his lawyer, Barbara Morgan was not responding promptly to Mr. Nabi’s correspondence, sometimes not for several months is completely appropriate and understandable. The same cannot be said for correspondence being sent to the Toronto Superior Court. Ms. Booker could only say in her evidence that Mr. Nabi may have instructed her to remove his email.

[84] I find from the totality of evidence on this issue that Ms. Booker was the individual who filed the application on Ms. Wyer’s behalf and continued to correspond with the Court attempting to make corrections and provide the information the Court was requesting.

[85] A troubling discovery surrounding the application to appoint Ms. Wyer as the Estate Trustee of her brother, Kyle Wyer’s estate without a will, is that the signatures purporting to represent her brother, Robert Wyer’s signature are significantly different. All of the three documents in question were signed on June 25, 2012, which leads to the reasonable inference they were signed at the same time, yet two of the signatures are significantly different from the third signature.[^31] All three signatures were witnessed by Barbara Brooker.

[86] A further concern that cannot be resolved because of a lack of evidence is the fact that the application in Superior Court lists only two persons entitled to share in the estate: Emily Elizabeth Anne Wyer (Landry, which is stroked out) and Robert Wyer. Yet three other individuals received $15,000.00 Trust cheques each: Casey Sullivan, Christopher Hicks and Kasey Wyer. No evidence was led as to the legitimacy of these cheques being issued to these individuals. Ms. Wyer provided no insight as to who these individuals were or why they received cheques. Throughout her evidence Ms. Booker seemed to suggest Emily Wyer and Robert Wyer were splitting the estate proceeds equally. This was how she explained the $28,806.26 cheque payable to Robert Wyer, dated February 10, 2014.

[87] A further irregularity is a Trust disbursement cheque dated October 15, 2014, payable to Janice Randalls in the amount of $24,520.10 and the only explanation indicated in the 4466 Trust ledger is what appears to be a client file – # 5045. A cheque dated October 15, 2014 in the same amount of $24,520.10, but with a different cheque #2609 is listed in Ex 2, Tab 3, p. PF-380 as a certified cheque paid from Mr. Nabi’s Trust account. The actual cheque is not in evidence but once again the cheque number entered in the Trust ledger is different from the bank statement. This cheque raises similar concerns raised by other entries in the Wendler Trust ledger and Estate of Kyle Wyer Trust ledger where dates of cheques, cheque #s and sometimes even amounts are different between the actual cheque and the Trust ledger entries. No evidence was led by either the Crown or defence as to who this individual is or why Ms. Booker wrote a cheque to her in October 2014, when the cheques to Ms. Wyer had ended in August 2014. It is difficult to know exactly what to make of this.

iv. Allegations by the Defence that Richard Nabi Accessed PC Law and Altered or Deleted Information from the 4500-a and 4466 Trust ledgers

[88] Mr. Singh alleges Mr. Nabi accessed the PC Law accounting records prior to retaining Kristopher McEvoy to review them in order to determine where the proceeds from the $125,000.00 certified cheque, dated May 15, 2013, drawn on Barbara Morgan’s Trust account, went after it was deposited into Mr. Nabi’s Trust account. The lawyer he had transferred Ms. Wendler’s file[^32] to, Margaret Hoy, had contacted him at the end of 2016, when he was living in Florida, advising that Mr. Dungey’s new lawyer, had written her and provided a photocopy of the certified cheque (referred to), as well as a deposit slip, which showed the cheque being deposited to Mr. Nabi’s Trust account #54882 (see Exhibit 2, Tab 3, p. PF341 and Exhibit 21B, Tab 17). Mr. Singh refers to Mr. Nabi’s 5th email to Ms. Booker seeking her assistance to find out what occurred to this money that was deposited to his Trust account, dated September 4, 2017, where he wrote:

My client file, bank records and what was left of your accounting on PC Law have not been helpful in explaining how such a large amount of money could go missing. Accordingly, I’m begging you to get in touch with me so that we can work together to resolve this issue quickly.

[89] Mr. Singh alleges this portion of Mr. Nabi’s email proves that he had access to the PC Law accounting program prior to sending the data to Mr. McEvoy and he alleges Mr. Nabi removed entries from the ledgers when he had that access. Mr. Singh also points to Exhibit 33, which is the trust ledger for Sandra Wendler’s file and points to entry #35031 from December 1, 2014. This entry is followed by 3 entries (#30885, 30886, 30888) all dated December 31, 2014. Mr. Singh submits this “illustrates that, at the very least, there are 4,342 entries sometime after December 31, 2014,” which he submits proves Mr. Nabi was altering the PC Law accounting records.

[90] Mr. Singh also alleges that Mr. Nabi had access to Ms. Booker’s computer when he had her return it to him in June 2015, as she had not completed his taxes by June 15, 2015. It is Mr. Singh’s position Mr. Nabi had access to PC Law and was able to get into PC Law at this time in order to complete his taxes.

[91] In my view there is no substance or foundation to Mr. Singh’s allegations for a number of reasons.

1. When Mr. Nabi had to complete his taxes in June 2015 it is my view, based on his evidence, which I accept, he utilized Ms. Horn to get the information and reports from the PC Law records to give to his accountants so they could complete his taxes, which he testified they did, albeit he filed them late and received a penalty.

2. However, there would be no reason whatsoever for Mr. Nabi to alter or delete any of the PC Law records in 2015 because he had not been contacted concerning the cheque his firm received for Ms. Wendler until late 2016. He believed the cheque had never been sent and he had transferred the file to Margaret Hoy and had advised her there was still $140,000+ still outstanding as owed by Gary Dungey to his mother, Ms. Wendler.

3. Further, Ms. Horn, who Mr. Nabi testified was familiar with PC Law and computers, would have been opening a PC Law program at a time in June 2015 when it was current, on a computer that was still operational. That was not the case in August 2017.

4. Mr. Nabi testified when he attempted to open PC Law when he obtained Ms. Booker’s computer from storage after returning from Florida, he was unable to open it or access the data contained within it. As a result he contacted John Gilmour, who worked as his IT technician for his office computers since 2001 until he retired in 2014 and hired him to open the PC Law program and provide the date to Mr. McEvoy.

5. Mr. Gilmour testified he had installed the PC Law program to Ms. Booker’s computer, and it was not installed on Mr. Nabi’s computer. Mr. Gilmour confirmed Mr. Nabi did not know how to run PC Law. He described PC Law as “the most complicated billing software” and Ms. Booker did all the entries, billing and so on. Mr. Gilmour testified in 2017 after Mr. Nabi retired, there was a problem with trust funds missing and Mr. Nabi asked him to access data from PC Law, to get the computers up and running. Mr. Nabi provided Mr. Gilmour with two computers – Ms. Booker’s and his. Mr. Nabi testified he told Mr. Gilmour he could not open PC Law and Mr. Gilmour confirmed this.

6. Mr. Gilmour testified he was also unable to access the data in PC Law, so he copied the data from the PC Law software. Mr. Gilmour had to find another IT technician who would be able to access the PC Law data Mr. Gilmour had downloaded from Ms. Booker’s computer. He found Matt Rose in the United States, who used to work for PC Law but now worked as a consultant. In Exhibit 20 Mr. Gilmour sent an email to Matt Rose on September 20, 2017, which in part indicated, “I have PC Law data folders from two computers that my client needs to gain access to. When starting the program it claims that you are trying to open a set of books that have not been initialized.” Mr. Rose understood Mr. Gilmour had not been able to access the information in the PC Law data on these computers.

7. Mr. Gilmour testified the data he downloaded from Ms. Booker’s computer was exactly the same he provided to Mr. Rose and to Mr. Nabi to provide to his accountant. There was no alteration of the data he provided to Matt Rose as to what was on Ms. Booker’s computer.

8. Mr. Rose testified he had to find a copy of Windows XP on the web, which he utilized to be able to open and access the PC Law data provided to him by John Gilmour. He provided reports from a list provided to him by Mr. Gilmour. He did not send back the data Mr. Gilmour had sent or the executable file he utilized to install the PC Law software sent to him by Mr. Gilmour. He only provided the reports as PDF documents.

9. The entry #35031 from December 1, 2014 referred to a “correction” in the Wendler ledger, which would have been made after the entries on December 31, 2014, hence the larger entry number. Further, this correction was something that occurred on a number of occasions in the Wendler trust ledger (4500) when monies were transferred from the Wyer Estate Trust ledger (4466) and conversely from 4500 to 4466.[^33] Mr. Rose testified that the reason the numbers are sequential is to see if corrections are made when other entries are made or some time later. It is the numbers that are sequential not the dates.

10. Ultimately, when Mr. Gilmour received the data back from Mr. Rose he discovered that Ms. Booker’s computer had a current working copy of PC Law installed as well as current file dates in terms of being up-to-date for the practice up to December 31, 2014. Mr. Nabi’s computer had an old copy of PC Law with nothing up to date as far as PC Law data was concerned. The working PC Law version was on Ms. Booker’s computer and Mr. Nabi had no access to it because PC Law was not networked in the firm.

11. Mr. Gilmour also testified that Ms. Booker would be provided a new computer over time and her old computer would be moved to Mr. Nabi’s office. This was why Mr. Nabi’s computer had the old version of PC Law and Ms. Booker had the newer version with the up to date data. This purchase of a new computer for Ms. Booker occurred a year or two before Mr. Nabi retired.

12. This final entry in the Wendler Trust ledger was to balance the Wendler Trust account to zero, which Mr. Nabi and Ms. Booker both testified was Ms. Booker’s responsibility as Mr. Nabi’s date of retirement grew closer (December 31, 2014). What is curious is that the last three entries related to fees by RAN (Mr. Nabi) but there was no money left in the Trust account, which had already been brought to zero by Ms. Booker.

13. Mr. McEvoy also testified that in his opinion the various entries in the Wendler and Wyer Trust ledgers were not simply a case of bad accounting, rather “there’s certainly intent behind the nature of some of the transactions conducted in the general ledger. So, for instance, like if it was just a matter of things simply not balancing, I could agree with that statement. But in instances where inexplicable entries have been entered in order to bring things to balance, I would say that’s evidence of intent.”[^34]

[92] Based on the evidence outlined above, I find Richard Nabi did not have access to the PC Law data prior to Matt Rose being able to access the PC Law program and provide the Trust ledger reports for the Wendler file. This information was not in a format anyone could alter as Mr. Rose simply printed off what was requested from the list provided by Mr. Gilmour and then provided those reports and data to Mr. Gilmour, who in turn provided it to Mr. Nabi and Mr. McEvoy. These records were provided by Mr. McEvoy to the Law Society and to the police along with his two reports. I accept Mr. Nabi’s evidence that he never accessed PC Law while he was practicing and did not know how to use that software program. I find he relied on Ms. Booker to enter all cheques, receipts and disbursements into the appropriate ledgers and accounting records. I further find Mr. Nabi would not have the training or technical skills and knowledge necessary to engage in the type of malfeasance alleged by Mr. Singh. This was confirmed and corroborated by Mr. Gilmour who saw from the two computers he copied the data from that Mr. Nabi’s computer had an old version of PC Law with out-dated information. This was because Mr. Nabi’s computer was Ms. Booker’s old computer given to Mr. Nabi when her computer was updated by Mr. Gilmour, just a couple of years before Mr. Nabi retired. Ms. Booker’s computer had the current PC Law for the time period she used it and the PC Law data was up to date to Mr. Nabi’s retirement.

[93] Further, Mr. Nabi only learned of there being a connection between the Wendler file and a file called “Kyle Wyer, 4466 estate Kyle Wyer” and another file called “Emily Wyer, 4477, various matters,” once Mr. McEvoy reviewed the PC Law accounting and reports provided by Mr. Rose for the Wendler Trust ledger. This did not occur until 2018, which was a considerable period of time after Mr. Rose was first able to access the PC Law data around September 25, 2017. Consequently, it is my view Mr. Nabi did not alter or delete or limit the information he provided his accountant or the police. I accept his evidence that he was not able to access PC Law, nor was Mrs. Speight, who he approached initially to assist him and nor could even Mr. Gilmour gain access to the PC Law.

v. The Sandra Wendler file

[94] One of Mr. Nabi’s clients was Sandra Wendler, who he represented from 2010 until he retired on December 31, 2014. I intend to only briefly outline the work performed by Mr. Nabi on behalf of Ms. Wendler to provide background respecting Mr. Nabi’s relationship with her.

[95] The first issue Mr. Nabi dealt with on behalf of Sandra Wendler was to request a copy of her mother, Evelyn Hale’s Will from Barbara Morgan, lawyer for Ms. Wendler’s son, Gary Dungey, who was the executor of Ms. Hale’s estate and to revoke the Power of Attorney Ms. Wendler gave to her son, Gary Dungey. Mr. Dungey had his mother placed in a nursing home and she did not wish to live under that circumstance. What followed were numerous letters requesting an accounting of Ms. Wendler’s assets that her son had been controlling and the transfer of funds owing to Ms. Wendler from her mother’s estate. Exhibit 28 is the correspondence contained in the Sandra Wendler file. From a review of the correspondence, it is my view Mr. Dungey’s lawyer, Barbara Morgan, did not respond promptly or diligently to Mr. Nabi’s requests on behalf of Ms. Wendler. In fact many letters were not responded to for months.[^35] It is clear from the correspondence a fairly significant estrangement existed between Ms. Wendler and her son. Mr. Singh filed the correspondence from the Wendler file 4500-a as Exhibit 28.

[96] Mr. Nabi again wrote Ms. Morgan on September 21, 2012, for an accounting of all money being held by Mr. Dungey (over $150,000) and by Ms. Morgan in her law firm’s account (Exhibit 28, p. 48-49). What appeared to be some form of accounting from an accounting firm was not provided by Ms. Morgan until December 20, 2012 (Exhibit 28, pp. 53-71), by overnight courier. Mr. Nabi wrote again on December 21, 2012, advising this was not an accounting pursuant to Rule 74.17 respecting the form and content of an Estate Trustee’s accounts. Mr. Nabi also brought a motion (January 9, 2013) to transfer the Estate proceeding from Toronto to Welland Superior Court. On January 7, 2013 (Exhibit 28, p. 85), Ms. Morgan provided the Bell shares (BCE) and advised she was not retained on the motion. She requested an adjournment of the motion for one month and advised her client was preparing an accounting as requested. The accounting was provided on January 29, 2013, Mr. Nabi responded on January 31, 2013 (Exhibit 28, pp. 89-92) and requested Ms. Morgan provide $16,441.80 immediately to Ms. Wendler, monies Ms. Morgan held in her trust account and again requested the $143,000 still remaining in the estate bank account. Ms. Morgan provided a Trust cheque in the amount of $16,441.80 (Exhibit 28, p. 93) on February 11, 2013 (copy of cheque Exhibit 28, p. 94) and Mr. Nabi confirmed receipt of the cheque for $16,441.80 by fax on February 12, 2013, (Exhibit 28, p. 95).

[97] Mr. Nabi wrote again on March 28, 2013, requesting the monies being held by Mr. Dungey owed to Ms. Wendler (Exhibit 28, p. 97). He again wrote requesting the money owed to Ms. Wendler on April 5, 2013, sent by fax (Exhibit 28, pp. 98-99). Ms. Morgan sent a letter dated April 17, 2013 (Exhibit 28, pp. 100-101) requesting information about Ms. Wendler, however, no cheque was provided. Mr. Nabi wrote again on April 24, 2013, sent by fax (Exhibit 28, pp. 102-103), once again requesting the outstanding monies from the Hale estate owing to Ms. Wendler and threatening to bring an motion to have all funds paid into court, Mr. Dungey to be stripped of his authority to administer the estate, a full accounting, taxing of the legal accounts and a costs order, if the funds were not received by May 15, 2013 (Exhibit 28, p. 103).

[98] Mr. Nabi wrote again to Ms. Morgan on May 17, 2013, requesting information and referring Ms. Morgan to re-read his letter dated January 31, 2013 (Exhibit 28, pp. 89-92, referred to above). Mr. Singh argued the May 17, 2013 letter refers to two emails sent May 14 and 15, 2013 by Ms. Morgan, which Mr. Singh suggested made reference to the payment of the $125,000 cheque, dated May 17, 2013, as this cheque was deposited to the Wendler Trust account on May 17, 2013, the same day as Mr. Nabi’s letter. The difficulty with this submission is the two emails were never put into evidence (as far as I know they were not provided pursuant to the Third Party Records Application; Ms. Morgan was represented by Scott Hutchinson) so it would be pure speculation to suggest one of these emails made reference to this cheque. Further, previously whenever Ms. Morgan provided payment of monies owing a letter was always written by Ms. Morgan, which accompanied the cheque and Mr. Nabi always sent a response confirming receipt of the funds. This did not occur respecting the $125,000 cheque. The reference for Ms. Morgan re-reading Mr. Nabi’s earlier letter was with respect to Mr. Dungey’s obligations as trustee to provide an accurate and detailed accounting pursuant to the Rules respecting distribution of the estates assets. The two emails could very well have been with respect to this information Mr. Nabi had been requesting. Finally, Mr. Nabi wrote again on March 11, 2014 (Exhibit 28, 106), to Ms. Morgan, enclosing a letter he had sent to Gary Dungey also on March 11, 2014 (Exhibit 28, p. 107), requesting payment of the outstanding funds of $143,000, based on the previous accounting documentation sent (this was the amount referred to in Mr. Nabi’s January 31, 2013 letter to Ms. Morgan).

[99] The final letter in the correspondence was Mr. Nabi’s letter sent to Margaret Hoy, a lawyer who had agreed to take over Sandra Wendler’s file, in which Mr. Nabi re-iterated that Ms. Wendler’s son still owed Ms. Wendler approximately $140,000 from the Hale estate. Mr. Nabi indicates in his letter that he chose not to bring a motion for the passing of accounts because of the cost to Ms. Wendler and secondly, because of Ms. Wendler’s decision to leave almost all of her estate to her two sons, Gary and Gregory Dungey.

[100] It was disclosed in the evidence that Ms. Wendler passed away sometime after Mr. Nabi’s retirement. This ultimately led to Margaret Hoy contacting Mr. Nabi at the end of 2016, two years after his retirement, inquiring about a $125,000 cheque that had been deposited into the Trust account of the Wendler file 4500-a on May 17, 2013. This was a shock to Mr. Nabi as he testified he believed there was money, in the amount of $140,000, still owing to Ms. Wendler from her mother’s estate, which was being administered by Gary Dungey, Ms. Wendler’s son. In fact, as indicated above Mr. Nabi wrote numerous letters to Ms. Morgan,[^36] requesting these funds be provided to his law firm or to Ms. Wendler with no return correspondence from Ms. Morgan advising she had sent a cheque to his firm on May 15, 2013. In my view the letter dated December 29, 2014, to Ms. Hoy is a significant contemporaneous and corroborative piece of evidence where Mr. Nabi indicated Ms. Wendler was still owed a substantial amount of money from her mother’s estate. Mr. Nabi would never have written this letter to Ms. Hoy, effectively instructing her to recover the money if as Ms. Booker testified Mr. Nabi told her that he intended to steal the $125,000 be cause he viewed it as his money, which according to Ms. Booker he did steal and then used it to give to Ms. Wyer. Ms. Booker’s position on this is completely unbelievable and nonsensical given she was the individual who was responsible for posting the cheques received and disbursed by the law firm. On her evidence she would be an accomplice in Mr. Nabi’s fraud.

[101] What is interesting in respect of all of these letters written by Mr. Nabi to Ms. Morgan demanding her client forward the monies to Sandra Wendler, and particularly the letters he wrote after the cheque had been deposited on May 17, 2013, into the Wendler Trust account, is that it was Ms. Booker who would have typed these letters to Ms. Morgan dated May 17, 2013 and the subsequent letter dated March 11, 2014, as well as the letter to Ms. Hoy, dated December 29, 2014, transferring Sandra Wendler’s files, yet Ms. Booker never brought to Mr. Nabi’s attention that this money he was requesting from Ms. Morgan or was instructing Ms. Hoy was still outstanding, had in fact been deposited into Ms. Wendler’s Trust account.

[102] A further interesting observation is that it was Ms. Booker whose responsibility was to balance all of Mr. Nabi’s clients’ Trust accounts, and in particular Sandra Wendler’s Trust account, which had to be balanced and closed before Mr. Nabi transferred it to Ms. Hoy (December 24, 2014). It was Mr. Nabi’s belief there was no money left in the Wendler Trust account because he did not believe the final payout had been made by Gary Dungey to his mother. When one examines Exhibit 33,[^37] the last entry to Ms. Wendler’s Trust account was a transfer of $3,707.62 from 4466 (the Kyle Wyer Estate file) to 4500-a (the Wendler file). This entry, dated December 1, 2014, brought Ms. Wendler’s Trust account to zero, although on October 28, 2014, it was in a negative balance, -$3,707.62. The notation on the transfer is “correction.” I have no doubt these entries were performed by Ms. Booker. Based on Mr. Rose’s evidence, December 1, 2014, was not the date the transfer from 4466 to 4500 occurred having regard to the entry number 35031, which is out of sequence to the entries made on December 31, 2014. I referred to this previously in paragraph 91(9). As I have also indicated above this is explained in the Wendler Trust ledger as being a “correction” and I find this would not be an entry Mr. Nabi would have been able to make given his lack of knowledge and training in PC Law. The only person in the Nabi firm with that expertise was Barbara Booker. Further, this “correction” would have been made after Mr. Nabi had retired and was no longer practicing or had access to Ms. Booker’s computer. This further supports my finding that Ms. Booker made this entry.

vi. Allegations by the Defence that Richard Nabi Used Monies from $125,000 Wendler Cheque to Provide Monies to Emily Wyer

[103] As I indicated Margaret Hoy contacted Mr. Nabi at the end of 2016, when he was living in Florida during the winter months, inquiring about a $125,000 cheque that had been deposited into the Trust account of Wendler file 4500-a on May 17, 2013, because Gary Dungey’s new lawyer, Mr. J.B. Hopkins was looking for. Ms. Wendler was deceased, and Mr. Dungey was a beneficiary of his mother’s estate.[^38]

[104] Mr. Nabi wrote to Margaret Hoy on October 9, 2017 (Exhibit 28, p. 110), advising her that he was unable to trace the funds Mr. J.B. Hopkins and his client Gary Dungey were seeking, the $125,000 cheque. Mr. Nabi indicated he believed there were no funds in trust when he referred the file and hoped the accountant he was hiring would be able to trace what happened to such a large amount of monies. Mr. Nabi also self-reported this matter to the Law Society as well.

[105] It was Mr. Singh’s position that Mr. Nabi used the $125,000 (cheque dated May 15, 2013, and deposited into the Wendler Trust account on May 17, 2013) received from Ms. Morgan, Mr. Dungey’s lawyer, monies which should have been paid to Ms. Wendler, to provide funds to Ms. Wyer. Ms. Booker testified this cheque arrived by courier. There was no invoice or receipt from a courier company presented in evidence nor was there any letter from Barbara Morgan to Richard Nabi advising she was finally sending the remaining funds being held by Gary Dungey that were owed to his mother, Sandra Wendler, from her mother’s estate.[^39]

[106] Ms. Morgan had sent letters accompanying the $16,441.80 she forwarded from her trust account and she sent a covering letter when she forwarded the Bell (BCE) share certificate she forwarded to Mr. Nabi. Ms. Booker received the mail at her desk and opened it and was supposed to provide it to Mr. Nabi. Mr. Nabi testified he was never aware the money he believed was owing to Ms. Wendler had been provided to his office and he would never have said to Ms. Booker, even on one occasion, Ms. Wendler would never see her money. If he had known it had come in Mr. Nabi testified he would have provided it immediately to Ms. Wendler. Ms. Booker testified she told Mr. Nabi the $125,000 cheque had arrived by courier and when she told him he seemed “giddy.” Ms. Booker prepared the deposit of this cheque to Ms. Wendler’s Trust account in PC Law and arranged for Ms. Horn to make the deposit. Ms. Booker testified Mr. Nabi usually wrote to Ms. Wendler when he received funds on her behalf, but he did not when this cheque arrived, in fact, according to Ms. Booker, Mr. Nabi acted like it was his money.[^40]

[107] The first problem with Mr. Singh’s position is that Trust and General account cheques were paid to Emily Wyer for several months (February to May 2013) prior to the $125,000.00 Wendler cheque even being received by the firm.

1. The Kyle Wyer Estate account 4466 (Exhibit 21B, Tab 13) has six Trust disbursement cheques drawn on it, payable to Emily Wyer, when there was no money in trust: (February 26, 2013 [$2000], March 6 [$3000], March 18, 2013 [$1000], March 26, 2013 [$1000], April 17, 2013 [$1000], April 25, 2013 [$1500], for a total of $9500.00). These are not insignificant amounts. The Trust account shows a negative balance of -$9500.00.[^41]

2. In addition, the Kyle Wyer Estate account 4466 (Exhibit 21B, Tab 13) has four General account cheques, payable to Emily Wyer, despite her not being appointed as the estate trustee until April 2014: (May 6, 2013 [$1000 with notation apartment deposit*], May 7, 2013 [$200 with notation rent], May 10, 2013 [$300], for a total of 1500.00). Again, no money was being held in trust for the Estate of Kyle Wyer during this period of time.

3. In addition to the Estate of Kyle Wyer file there was a second file called Emily Wyer, 4477 various matter. The Emily Wyer 4477 file has two General account cheques issued, payable to Emily Wyer (December 14, 2012 [$500] and April 19, 2013 [$200], for a total of $700.00). Again there was no money in the Trust account related to this file.

4. Finally, there are a number of General account cheques, signed by Ms. Booker, payable to Emily Wyer, that are not reflected in either of the two files relating to Emily Wyer (4466 and 4477) (April 4 [$1000],April 11 [$500], May 1 [$500], and May 3 [$1000], 2013, for a total of $2500).

[108] The total amount of money paid to Emily Wyer prior to the Wendler $125,000 cheque being received and deposited into the Wendler file 4500-a Trust account on May 17, 2013, was $14,200, of which $9,500 were written on Trust cheques drawn from the Estate of Kyle Wyer Trust account when no money was on deposit. Ms. Booker was responsible for making all of these entries into PC Law and attributing them to the various files, which she also created as part of her responsibilities. Further, there are numerous General account cheques that are not posted to either of the Wyer files (4466 or 4477). It is my view this was a deliberate action by Ms. Booker and was a common feature observed by Mr. McEvoy where cheque numbers were not accurate in the Trust ledgers with the cheques actually written by Ms. Booker and found in the banking records. Further, in some cases the amounts of cheques entered into PC Law in these two files were inaccurate as well. By this point in time Ms. Booker had worked for Mr. Nabi for at least 10 years and would certainly know the impropriety of writing Trust cheques when there is no money in trust in respect of the file you are posting those disbursements to. Ms. Booker’s actions in writing these Trust cheques placed the Kyle Wyer Estate Trust account in a negative balance of -$9500, which Mr. McEvoy testified should have been an “impossibility,” this was not supposed to happen. She knew there was no money in trust for this estate. She also knew Ms. Wyer had not been appointed as the Estate Trustee and there was no guarantee Ms. Wyer would be appointed or that any monies would be realized to the estate.

[109] It was Ms. Hoy’s phone call, in late 2016, to Mr. Nabi when he was in Florida that caused Mr. Nabi to commence investigating what happened to the money from this $125,000 cheque once he returned from Florida. Mr. Singh has criticized Mr. Nabi for not returning immediately upon being advised by Ms. Hoy of the missing $125,000. In my view nothing of substance turns on this. He was living in Florida with his partner and there is no evidence that he was even requested to return immediately.

[110] Mr. Singh also criticized Mr. Nabi for not seeking Ms. Booker’s assistance for a little over three months after his return to determine what happened to a cheque that was clearly deposited to his trust account for Ms. Wendler. Mr. Nabi testified he initially attempted to telephone Ms. Booker, but she did not respond to his messages. He did obtain the Wendler files from Ms. Hoy after his return. He testified he reviewed that correspondence, but it offered no insight or evidence about the $125,000 cheque. I do not have much evidence respecting what steps Mr. Nabi took after returning from Florida but the fact remains he did reach out to Ms. Booker, his secretary/bookkeeper for over 10 years, for her assistance in going through records he did not know how to access or utilize that Ms. Booker worked with daily. Ms. Booker did not respond. Mr. Singh says Mr. Nabi did not say anything to Ms. Booker about his belief at the end of 2014 when he transferred the file to Ms. Hoy that there was money owing. I do not agree with Mr. Singh’s suggestion given Mr. Nabi makes reference at the beginning of this email that he thought Ms. Hoy was going to proceed with the motion for Passing of Accounts to recover the money that was owing to Ms. Wendler by her son, which Mr. Nabi had not completed. This is a direct reference to the fact he believed money was still owing. However, the simple fact was Ms. Hoy, after contacting him in 2016, provided Mr. Nabi with a photocopy of the $125,000 certified cheque and the deposit slip (Exhibit 21B, Tab 17), which clearly demonstrated the money had been received and deposited into Ms. Wendler’s Trust account, yet Mr. Nabi knew and believed the Trust account had no money in it when he retired on December 31, 2014. This was what he advised Ms. Hoy when he transferred the Wendler file to her.

[111] Mr. Nabi was not idle in the time before he emailed Ms. Booker on August 7, 2017, as he indicates in his email he obtained the cheque stubs from 2013. He checked the correspondence in the file he got back from Margaret Hoy and there was no reference to this cheque. He found an account from July 18, 2013 but he could not see from the documents he had where the balance of these funds would have gone. He offered to get her the computers for her to look at. He offered to pay her for her time (Exhibit 21B, Tab 18). In a follow up email, Mr. Nabi expressed his concerns about the matter but did not blame Ms. Booker. He says this might amount to nothing more than a simple bookkeeping error and is begging her to call him. It is clear to me Ms. Booker is putting Mr. Nabi off, says she had not been looking at her emails but has time on Sunday and will call on Saturday to set up a time, but does not call. In my view she has no intention of meeting with him or assisting him. He told her “the client file, banks records and what is left of [her] accounting on PC Law have not been helpful in explaining how such a large amount of money could go missing.” I have dealt with this comment earlier and do not come to the same conclusion as Mr. Singh. Mr. Nabi could not open PC Law and access the data, this was confirmed by John Gilmour, who was Mr. Nabi’s IT expert, as even he could not access the information on PC Law in Ms. Booker’s computer. Finally he told Ms. Booker he was unable to determine why the Wendler money was missing and as a result he was obligated to notify LSUC. He finally on September 4, 2017, begs her one last time to help him trace the funds, maybe they were accidently transferred to a bank or mortgage company who put the money in someone’s account. Ms. Booker’s reticence to assist Mr. Nabi in my view creates a reasonable inference of her being involved in why this $125,000 has gone missing, particularly considering her taking the bizarre step of mailing Mr. Nabi via Xpresspost (Exhibit 21B, Tab 18) when she could have called or sent an email, to say she is sorry she has not been in touch, setting up another day to meet but not following through.

[112] A final observation respecting these emails by Mr. Nabi seeking Ms. Booker’s assistance in tracing the funds from this Wendler cheque is with respect to the tone of the emails. There is no anger or blaming expressed by Mr. Nabi, rather his tone is genuinely seeking her help and assistance and despite her unwillingness to do so Mr. Nabi is conciliatory and respectful towards her, which is very different from the description given by Ms. Booker of Mr. Nabi’s demeanour towards her when she worked for him. This in my view raises serious questions about the truthfulness of Ms. Booker’s description.

[113] When Mr. Nabi determines he cannot enlist Ms. Booker’s assistance in tracing the funds from this cheque, he hires John Gilmour to assist him get into Ms. Booker’s computer and the PC Law program. But John Gilmour cannot get into the program and Mr. Nabi then hires another IT expert, and pays him more money to assist getting into PC Law. He then hires Kristopher McEvoy, pays him $30,000 to trace and find the money that has gone missing. In my view all of these actions and conduct by Mr. Nabi are not the conduct of someone who has stolen the funds and previously announced it to his secretary/bookkeeper. In my view the only reasonable inference is that Richard Nabi’s actions do not support Ms. Booker’s position that he stole the money from Ms. Wendler to pay Ms. Wyer.

[114] Mr. Singh also criticized Mr. Nabi for hiring Kristopher McEvoy to investigate and trace what happened to the $125,000 deposited into Ms. Wendler’s Trust account. He alleges there is something nefarious about Mr. Nabi hiring another accountant, Mr. McEvoy, instead of the accounting firm who had always done his financial statements. However, Mr. Singh ignores Mr. Nabi’s answers when he was being cross-examined on this issue:

The manager of the office in Fort Erie said it was too big a job for the small staff that he had in Fort Erie and he thought I would be better off going, if there was – if I was considering that there might have been employee involvement, I’d be better off going to a completely neutral set of accountants, because they knew Ms. Booker and she used to deliver the information every year necessary for paying my taxes and those things.

[115] In my view this is also a non-issue, as is Mr. Singh’s criticism of Mr. Nabi not engaging Mr. McEvoy to do an audit. In my view the investigation engaged in by Mr. McEvoy did not necessitate an audit being conducted and this was clearly indicated by Mr. McEvoy in his evidence. Mr. McEvoy testified he was not conducting an audit to produce audited financial statements and he was not retained to perform an audit. His role was to attempt to trace where this $125,000 cheque had gone, how did Ms. Wendler’s account balance to zero at the time of Mr. Nabi’s retirement.

[116] As I indicated above, Mr. Nabi only became aware of Emily Wyer because her name was drawn to his attention by Mr. McEvoy, who discovered her name when he was investigating what happened to the $125,000 cheque deposited into Sandra Wendler’s Trust account, file 4500-a. Mr. McEvoy identified monies being taken from the Wendler Trust account and transferred to reduce negative balances in file 4466, the Kyle Wyer Estate (see Exhibit 33, May 17, 2013 transfer from 4500 to 4466 of $7,500, later corrected on July 18, 2013 when this amount was transferred back from 4466 to 4500).[^42] Mr. McEvoy also discovered in the Sandra Wendler Trust account ledger that monies were being paid to beneficiaries of the Kyle Wyer Estate (Exhibit 33, December 20, 2013: $10,000 to Robert Wyer;[^43] January 27, 2014: $10,000 to Robert Wyer; February 10, 2014: $28,806.26 and April 1, 2014: $10,000 to Emily Wyer; May 22, 2014: a $15,000 transfer from 4500 to 4466 described as Mortgage Funds; and an July 11, 2014: a $5,000 transfer from 4500 to 4466) for a total of $78,806.26. There was no reason for these two files to be connected by transferring or paying monies out.

[117] None of these cheques were legitimately drawn on the Sandra Wendler Trust account. Many of the recorded cheque #s in the 4500-a Trust account relating to cheques paid to Emily Wyer and Robert Wyer do not match the actual cheque numbers found in Exhibit 21B, Tab 10. A further irregularity is the amount of $3707.62, which was transferred from 4466 to 4500 to bring the negative balance of -$3707.62 in Sandra Wendler’s Trust account to zero. As I have indicated the only person accessing PC Law and inputting cheques received into Trust accounts or cheques drawn on Trust accounts or transfers from one file to another and who understood all of the intricacies in how to properly mark these entries into the Trust ledgers was Barbara Booker. As I have found Richard Nabi had no idea of how to make these types of entries into PC Law, which was corroborated by John Gilmour. Mr. McEvoy testified there was no reason for these file numbers 4500 with 4466 or Sandra Wendler with Emily Wyer or Robert Wyer, to be interacting with each other in the trust ledgers, unless the monies deposited into the Wendler Trust account, 4500-a, were being utilized to cover some of the cheques being paid to Ms. Wyer that she was cashing immediately after she picked them up from Ms. Booker.

[118] With respect to the Trust cheques drawn on the Wendler Trust account that were payable to 4466 matters there are a number of irregularities and differences between what is recorded in the Wendler Trust ledger and the actual cheques:

A. December 20, 2013, cheque #2223 payable to Robert Wyer $10,000

This cheque is not listed in Exhibit 21B, Tab 9 or found in Exhibit 21B, Tab 10 but a Cheque #2224 dated December 20, 2013, for $10,000 is listed in Ex 2, Tab 3 December 2013 Bank Trust Account Statement, p. PF-357.

B. January 27, 2014, cheque #2242 payable to Robert Wyer $10,000

Date on Actual Cheque is January 24, 2014, and Memo line RAN: 4466

C. February 10, 2014, cheque #2705 payable to Robert Wyer $28,806.26

Actual Cheque #2254 and Memo line RAN: 4466

D. April 1, 2014, Cheque #2313 payable to Emily Wyer $10,000

Actual Cheque #2314 and Date March 31, 2014, and Memo line 4466

[119] It should be noted that there are only two of three cheques payable to Robert Wyer in Exhibit 21B, Tab 10, $10,000 cheque dated January 24, 2014 and $28,806.26 cheque dated February 10, 2014. The earlier $10,000 cheque is missing and was not produced during the trial. The endorsement signatures on the on the back of each of the two cheques in evidence are similar to each other; however, those two signatures are completely different from the signatures of Robert Wyer on documents in Exhibit 31 referenced in paragraph 85 above. This raises questions about who signed the Superior Court documents and who ultimately signed the two cheques payable to Robert Wyer and cashed those cheques.

[120] What is clear from an examination of the Trust ledgers (6644 Estate of Kyle Wyer and 4500-a Sandra Wendler) filed in this case is that there is a pattern of misstating dates on cheques, cheque #s and sometimes the amounts of cheques between the actual cheques and the accounting records. As I have already found, the accounting records in PC Law were entered and created by Barbara Booker. I have also found that Richard Nabi did not have the training or knowledge to be able to understand how to make the entries I have referred to, which leads to a reasonable inference that Ms. Booker was attempting to obscure and conceal her actions involving these two Trust accounts.

vii. The Main Factual Issue Respecting Barbara Booker on the Charge of Fraud Over

[121] It is agreed by all counsel the main factual issue in dispute in this case is whether Mr. Nabi authorized Ms. Booker to prepare 140 cheques payable to Ms. Wyer, two cheques payable to Robert Wyer (perhaps three cheques[^44]) and three additional cheques payable to three other individuals,[^45] perhaps beneficiaries of Kyle Wyer’s estate, although no evidence was presented how Emily Wyer, as the appointed estate trustee determined who was entitled to receive funds from the estate monies. There were no documents filed on this trial relating to an accounting by Ms. Wyer, as Estate Trustee, respecting the distribution of the estate assets to the beneficiaries who were entitled to receive monies. Mr. Nabi testified he did not authorize any of these cheques, as Emily Wyer was not his client and he was not retained to assist her in an application to become the estate trustee of her brother’s estate where there was no will. Ms. Booker testified Mr. Nabi authorized all of these cheques to be issued to Ms. Wyer despite there being no money in trust from which to issue these cheques, amount to close to $100,000, for at least 15 months. Ms. Wyer did not testify.

[122] Ms. Booker alleges Mr. Nabi instructed her to issue cheques to Emily Wyer because she was experiencing difficult financial circumstances and desperately needed the money. This was despite the fact that no money had been received when Ms. Booker testified she received this instruction and Ms. Wyer had not even been appointed as the Estate Trustee. Further, Ms. Booker testified she believed Emily Wyer walked into their offices off the street looking for a lawyer. This meant Mr. Nabi did not know Ms. Wyer or have any kind of pre-existing friendship or relationship with her such that he would be prepared to advance her money from his firm’s Trust and General accounts based on the possibility of being repaid if Ms. Wyer was made her brother’s estate trustee and there were some kind of assets in the estate, which would then be paid from the estate to Ms. Wyer. All for an individual he did not know or have any relationship of any kind with.

[123] Why would Ms. Booker create two files for the monies Ms. Wyer was expected to receive, which according to Ms. Booker were derived from the same source in respect of these so-called advances to Ms. Wyer based on the anticipated estate funds. There is no need for Ms. Booker to create two files. Both files have General account cheques written to Ms. Wyer [4466: $40,115 and 4477: $11,600]. The 4466 file paid $37,000 in Trust cheques to Ms. Wyer.[^46] As discussed above Emily Wyer received a total of $99,225.00, however, only $88,715 were drawn from the Trust and General accounts of the 4466 and 4477 files. It is difficult to determine where the remaining $10,510 was taken from but it had to come from Mr. Nabi’s firm’s General account. What is clear there was no accounting record which reflects the total amount of money paid to Ms. Wyer by Ms. Booker over the 18 months she received the 140 cheques. In my view this puts a lie to the allegation by Ms. Booker that Mr. Nabi instructed and authorized her to write these cheques to Ms. Wyer, but he did not ensure an accurate record was kept as to exactly what amount she received. This also means Mr. Jamieson’s alternate reasonable inference is less than reasonable.

[124] There are further entries in the Trust ledger of the Estate for Kyle Wyer, 4466 which raise red flags. Again these are entries made by Ms. Booker. As indicated earlier the first cheques paid to Ms. Wyer from February 26, 2013 to April 25, 2013 were from the Trust ledger of 4466 for a total of $9,500 when there were no funds in trust. Initially Ms. Booker attempted to reduce this overdraft by transferring $7,500 from 4500 to 4466 on May 17, 2013, reducing the negative balance to $2,000. Prior to this transfer of funds Ms. Wyer had been paid a further $1,700 from the General account and just after the $7,500 transfer, two further payments of $1,045 the fee for the estate trustee application and $300 for Ms. Wyer. The $7,500 was transferred back from 4466 to 4500 on July 18, 2013, as a “correction” putting the Trust back into overdraft of -$9,500. The 4466 Trust ledger then show Richard Nabi transferring $9,500 into 4466 from his General account reducing the -$9,500 paid to Ms. Wyer from the Trust account to zero. This all occurred prior to any monies being received by Kyle Wyer’s estate.

[125] Ms. Booker’s explanation of Mr. Nabi authorizing and instructing her to issue both General account cheques and Trust cheques, when there is no money in Trust, to Ms. Wyer does not accord with common sense or logic when she claimed maybe Mr. Nabi had asked her to delete his email from the letterhead because he just did not want to receive any correspondence about the estate application. Surely if Mr. Nabi was advancing over $60,000, as alleged by Ms. Booker and assuming such a huge financial risk with no guarantee he would be reimbursed if Ms. Wyer was not appointed as the Estate Trustee, he would have been very interested and actively involved in the Superior Court application. As I have found it was Ms. Booker, on the totality of the evidence led during this trial, who was solely handling the Superior Court application to appoint Ms. Wyer as the Estate Trustee for Kyle Wyer. Ms. Booker’s evidence is clearly internally inconsistent on this issue.

[126] A further difficulty with Ms. Booker’s position that I have already referenced is why would Mr. Nabi be willing to take such extreme risks for Ms. Wyer, someone who had just walked into his office off the street looking for a lawyer. She was not a special client he had represented for years or a close personal friend. Ms. Booker’s evidence respecting Mr. Nabi’s insensitive indifference to Kyle Wyer’s death and Ms. Wyer’s loss by her description of Mr. Nabi doodling bones on the margin of his notes from his first interview is completely inconsistent with Ms. Booker’s evidence of Mr. Nabi taking on this incredible financial risk because of his concern for her dire financial circumstances.

[127] Perhaps equally as inconsistent is Ms. Booker’s evidence of Mr. Nabi’s disregard towards Ms. Wendler who he had represented for many years. It is clear to me from the correspondence in Ms. Wendler’s file that Richard Nabi was a diligent, hardworking lawyer who took his client’s interests seriously and who conscientiously pursued and succeeded in protecting his client’s best interests, in this case Sandra Wendler’s. To allege he was openly stealing from Ms. Wendler by treating her $125,000 as his own is preposterous based on the evidence in this case. Mr. Nabi early on in his representation of Ms. Wendler obtained $100,000 of the estate proceeds for Ms. Wendler, which he forwarded on to her almost immediately. He next ensured that Ms. Morgan did not charge any legal fees in respect of the remaining $16,441.80 in her Trust account that was owing to Ms. Wendler, which was provided by Ms. Morgan on February 14, 2013 after Mr. Nabi had threatened to report Ms. Morgan to the Law Society. He also obtained the Bell share certificate (BCE), which was sold, and the proceeds of $64265.87 were sent to Mr. Nabi and deposited to Ms. Wendler’s Trust account on May 6, 2014 and then sent to her by Trust cheque on the same day. These are not the actions or conduct of a lawyer who has openly indicated to his secretary/bookkeeper he is going to steal $125,000 from the same client in May 2013. When Mr. Nabi testified about Ms. Wendler during his cross-examination by Mr. Singh when these allegations were put to him it was my view Mr. Nabi had a genuine respect and fondness for Ms. Wendler and that he held her in high regard. The evidence disclosed in my view that Mr. Nabi went above and beyond in his representation of Ms. Wendler. I completely reject Ms. Booker’s characterization of how Mr. Nabi viewed Ms. Wendler.

[128] An additional difficulty with Ms. Booker’s position that Mr. Nabi gave her instructions to write cheques to Ms. Wyer when there was no money in trust is the simple fact that writing Trust account cheques when there is no money is a serious disciplinary offence in the eyes of the Law Society and is a one way ticket to disbarment for a lawyer. This does not accord with common sense when that lawyer has decided he is retiring from the practice of law in less than two years. If this conduct was discovered it would also likely result in Mr. Nabi being charged with committing fraud in respect of his client’s Trust account. This evidence of Ms. Booker makes absolutely no sense whatsoever, particularly based on the evidence before the Court respecting the nature of Mr. Nabi’s law practice and his positive reputation.

[129] Further, the conduct alleged by Ms. Booker as to Mr. Nabi being prepared to defraud ODSP on behalf of Ms. Wyer by providing her small cheques so her ODSP pension would not be jeopardized does not accord with logic and life experience because there is no benefit at all to Mr. Nabi, particularly when he does not know the individual he is instructing his secretary to write the cheques for. In my view this type of conduct would only create incredible risk to Mr. Nabi of being charged with a further criminal offence. In my view none of this makes any sense at all.

[130] In the end I do not accept Ms. Booker’s evidence. I have described the many internal inconsistencies and contradictions in her evidence. Further, her position is completed refuted by the documentary evidence in this case. The number of cheques alone puts a lie to her position. The fact of the frequency of the cheques she was writing for Ms. Wyer, which dramatically increased as time went on from October 2013 and especially in the last three months when the cheques to Ms. Wyer totalled $29,600, a little less than a third of the total amount of money Ms. Wyer received over 18 months. In my view this is shocking, especially given the fact that the London Life proceeds had been depleted prior to it being received with the exception of about $10,000 remaining. Ms. Booker maintained the cheques paid to Ms. Wyer were for emergency personal expenses, however, the amount of the individual cheques belies that assertion, particularly in the last three months. Mr. Singh suggested to Mr. Nabi that he agreed to assist Ms. Wyer and lost track of the money and just kept instructing Ms. Booker to write Ms. Wyer cheques, Mr. Nabi denied the suggestion and indicated he would not have taken on a client that needed a $100,000 up front.

[131] Only two of the cheques drawn on Mr. Nabi’s General account have something written in the memo line of the cheques, yet routinely the vast majority of other General account cheques for bills, wages, Mr. Nabi’s draw and other expenses all have something written in the memo line. The only cheques to Ms. Wyer that always have something in the memo line are the Trust cheques, which are spaced out and more often than not have RAN: 4466 or just 4466, which refers to the file number. The Trust cheques are typed, and Mr. Nabi’s evidence was he could have signed some of these cheques to Ms. Wyer and others in a stack of Trust cheques, although there were a number of the Trust cheques where Mr. Nabi testified the signature was not his signature. All of the General cheques were signed by Ms. Booker. I reject Ms. Booker’s evidence as it relates to her position Mr. Nabi instructed her to write cheques for Ms. Wyer. I further find Ms. Booker’s evidence does not raise a reasonable doubt about her guilt in this matter.

[132] As a result of rejecting Ms. Booker’s evidence and it not raising a reasonable doubt I must consider the evidence I do accept to determine whether the Crown has proven the fraud over charge beyond a reasonable doubt. As I have discussed Mr. Nabi on being advised by Ms. Hoy that a cheque in the amount of $125,000 had been deposited to his Trust account for Ms. Wendler approximately 31/2 years before, immediately took steps to try to determine why he thought this money was still owing and where it went by the time he retired over a year later. His actions at ever turn invited scrutiny by others respecting this money, which I have detailed above. After hiring IT experts to be able to access the PC Law software program Ms. Booker employed, he hired an accountant to review the PC Law reports and ledgers, compare it with the banking records in an attempt to trace these funds. He also self-reported the matter to the Law Society, which involved another layer of scrutiny. He also contacted the police, which involved a further layer of scrutiny into his law firm’s affairs. He also advised Mr. McEvoy to cooperate with both the Law Society and with the police and provide his findings and opinions freely. As a result of Mr. McEvoy’s investigation the names Emily Wyer and the Estate of Kyle Wyer came to light and these matters were interacting with the Wendler account despite them not having any relationship or connection with that file. As I have already indicated Mr. Nabi’s actions of involving all of this scrutiny are not the actions of someone who has something to hide, which he clearly would have if Ms. Booker was telling the truth. In my view Mr. Nabi’s actions clearly corroborate his evidence that he knew nothing about a cheque for $125,000 being paid to his office by Ms. Morgan and he knew nothing about someone named Emily Wyer or the Estate of Kyle Wyer.

[133] I found Mr. Nabi to be careful, forthright witness, who made every effort to provide complete answers to the questions he could answer and who made concessions that were appropriate and fair. He was not combative or evasive in cross-examination despite a vigorous cross-examination by Mr. Singh, who made serious and in my view unsubstantiated allegations towards Mr. Nabi, attacking his veracity and integrity at every turn. Mr. Nabi did not become flippant or sarcastic or angry with Mr. Singh. If he could no recall something he was candid in admitting this. As I have already indicated I did not find him to display any animus towards Ms. Booker. In my view he clearly respected her capabilities and skills and came to trust her work.

[134] Mr. Nabi’s evidence is consistent with the documentary record and as I have found he was unaware of the estate trustee application in the Superior Court in Toronto and Ms. Booker was the person conducting and overseeing the Superior Court application. Mr. Nabi testified he never met with Ms. Wyer and there were no appointments in the appointment book kept by Ms. Booker. As I have indicated the absolute number of cheques, 140, and the significant amount of money provided to Ms. Wyer, greatly in excess of any justifiable amount she might have been entitled to defies any legitimate purpose. There was no evidence led during this trial as to how the proceeds of Kyle Wyer’s estate were to be divided among his beneficiaries, but the total sums paid were between $72,000 to $106,500 (if the $24,500[^47] and additional $10,000 cheque paid to Robert Wyer listed in the Wendler Trust Ledger[^48] relate the Kyle Wyer’s estate). Mr. Nabi testified he would never have provided cheques to a beneficiary of an estate until the monies were received, yet the majority of the cheques payable to Ms. Wyer were written and signed by Ms. Booker as they were General account cheques. The Trust account cheques appear to be signed by Richard Nabi and in many instances he identified the signature as his own, although on some of the Trust cheques payable to Ms. Wyer, Mr. Nabi testified the signature was not his signature or he could not be certain it was his signature. Regardless, Mr. Nabi’s explanation of how he could have signed Trust cheques to Ms. Wyer as part of a stack of Trust cheques provided to him by Ms. Booker accords with common sense and everyday human experience in respect of an employer who trusts his employee. I accept Mr. Nabi’s evidence in respect of this explanation. The strength of his explanation increases when considering the Trust cheques written to Ms. Wyer when there was no monies in trust. I found Mr. Nabi’s assertion that he would never draw a cheque on Trust if there was no money deposited by the client into the Trust account to be both credible and believable, particularly when I consider Ms. Wyer’s non-existent relationship with Mr. Nabi who testified he did not know her and had made a decision to retire from the practice of law within two years.

[135] Based on the evidence led during this trial, it is my view that Mr. Nabi had nothing to gain by advancing money to Ms. Wyer. Ms. Booker’s evidence respecting her dislike of Mr. Nabi, her lack of respect for him, the fact she felt “trapped” in a job that asked too much of her, paid her too little but she needed the job to support her family – all of this provides a motive for Ms. Booker to defraud her employer. It is my view the evidence is overwhelming that Richard Nabi did not instruct or authorize Ms. Booker to write cheques to Ms. Wyer prior to Ms. Wyer being appointed the Estate Trustee and prior to any monies being received in respect of this estate. Ms. Booker knew the cheques she was writing to Ms. Wyer were not authorized by Mr. Nabi. Her conduct put him at risk of deprivation and after the dust settled actually caused actual deprivation to him. Ms. Booker knew exactly where the money being paid to Ms. Wyer was coming from, some was coming from Mr. Nabi’s Trust funds (the first $9,500 came from a Trust account [Estate of Kyle Wyer] that had no funds for 15 months before some funds were deposited), it came from Ms. Wendler’s Trust funds, which I find Ms. Booker was fully aware of, there were numerous entries in Ms. Wendler’s Trust account moving money out to pay Ms. Wyer, her brother Robert Wyer (or someone else connected to this estate) and from Mr. Nabi’s General account, where large amounts of money were paid to Ms. Wyer using General account cheques. This may have explained why there were occasions both Mr. Nabi and Ms. Booker testified the General account was short of funds. In fact, the General account expenditures for 4466 were not only reimbursed from the London Life insurance proceeds, but the Wyer ledger entries reflected occasions when Richard Nabi was depositing money to the Wyer Trust account, as well as entries reflecting transfers of money from 4500 (Wendler) to 4466. As I have indicated previously, these were accounting entries that only Ms. Booker had the training and expertise to perform.

[136] On the totality of the evidence in this case I find Ms. Booker knew these cheques were not authorized by Mr. Nabi and she was the one who wrote and prepared them all. I am satisfied beyond a reasonable doubt as to her guilt in respect of the charge of fraud over $5,000.

viii. Analysis of Evidence on Charge of Fraud Over in Relation to Emily Wyer

[137] In order to prove Emily Wyer is a party to the offence of fraud the Crown must prove beyond a reasonable doubt the actus reus and mens rea. In my view, given my findings respecting Ms. Booker’s evidence, which Ms. Wyer relied on, Ms. Wyer received unauthorized payments from Richard Nabi’s law firm, which created a risk of deprivation and caused actual deprivation to Richard Nabi. She negotiated the cheques into cash by attending the Money Mart within walking distance to Mr. Nabi’s office, which I find fully proves beyond a reasonable doubt the actus reus. The only issue remaining is whether the Crown has shown beyond a reasonable doubt that Ms. Wyer was an active participant in Ms. Booker’s fraud or was wilfully blind to the unauthorized nature of the cheques and the type of crime being committed as well as the circumstances necessary to aid Ms. Booker.

[138] Wilful blindness arises where an individual’s suspicion is aroused to the point of seeing the need to make further inquiries, but deliberately chooses not to make those inquiries. In R. v. Briscoe,[^49] Justice Charron for the Court held:

21 Wilful blindness does not define the mens rea required for particular offences. Rather, it can substitute for actual knowledge whenever knowledge is a component of the mens rea. The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries. See Sansregret v. The Queen, 1985 79 (SCC), [1985] 1 S.C.R. 570, and R. v. Jorgensen, 1995 85 (SCC), [1995] 4 S.C.R. 55. As Sopinka J. succinctly put it in Jorgensen (at para. 103), "[a] finding of wilful blindness involves an affirmative answer to the question: Did the accused shut his eyes because he knew or strongly suspected that looking would fix him with knowledge?"

22 Courts and commentators have consistently emphasized that wilful blindness is distinct from recklessness. The emphasis bears repeating. As the Court explained in Sansregret (at p. 584):

... while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, wilful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in wilful blindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry. [Emphasis added.]

[139] The Crown submits she must show Ms. Wyer “suspected the fact; …realized the probability; but refrained from obtaining the final confirmation because [s]he wanted in the event to deny knowledge.”[^50] The Crown concedes the case against Ms. Wyer on the issue of mens rea is circumstantial. Justice Watt in R. v. Burnett,[^51] held:

143 In some instances the evidentiary threshold for wilful blindness may be met by an accused's own evidence. As for example, where his or her testimony discloses inherently suspicious events characterized by unclear details and at odds with common sense and human experience: R. v. Morales, (2006), 2006 19930 (ON CA), 81 O.R. (3d) 161 (C.A.), at para. 26. But the threshold may also be met by the cumulative effect of several strands of circumstantial evidence from different sources woven together in a mosaic. [Emphasis added]

[140] In my view the circumstantial evidence demonstrates on a totality of the evidence that the only reasonable inference or conclusion is that Ms. Wyer aided Ms. Booker in perpetrating the fraud on Richard Nab through the writing of Trust and General account cheques to Ms. Wyer. The sheer volume and the significant amount of the cheques written to Ms. Wyer, before she was appointed Estate Trustee of her brother’s estate and even after the London Life insurance proceeds were deposited proves the distribution of money did not accord with logic or common sense. The total amount of the cheques issued to purported beneficiaries was in excess of the insurance cheque by between $80,000 and $106,000. At the time the London Life cheque was issued and received there was only a balance of just over $10,000.

[141] Ms. Wyer as the Estate Trustee had a responsibility and obligation to account for the monies received in the estate, which she clearly did not fulfill if she was performing this role conscientiously. According to the Superior Court documents only two beneficiaries were named, Emily Wyer and Robert Wyer. The estate was without a will, Ms. Booker testified Ms. Wyer and her other brother were to share equally in the proceeds of the estate. I found that Ms. Wyer had never met Mr. Nabi, yet she was receiving cheques, in all sorts of amounts on a frequent basis for 18 months and which increased dramatically for the final 5 months.[^52] This would clearly have raised questions in her mind which she did not inquire about because she did not want to know the answers, or as I will discuss later in my reasons she only knew the answers too well. The cheques for the Nabi law firm continued long after the London Life cheque was received. Ms. Wyer knew The insurance proceeds had been received because she signed the back of the cheque.[^53]

[142] Ms. Wyer cashed the cheques she received from Ms. Booker immediately after arriving at Mr. Nabi’s offices and obtaining them from Ms. Booker. However, she did not deposit them in her Bank of Montreal account in Fort Erie, where there would be no fees for cashing the cheques, rather she cashed them at the Money Mart location within walking distance from Mr. Nabi’s offices and where she had to pay a fee for this privilege. During the time Ms. Wyer is cashing the Nabi law firm cheques at Money Mart, 18 months, she does not deposit or do any other transactions at this Money Mart.

[143] In my view the only reasonable inference or conclusion to draw from the fact Ms. Wyer came to the Nabi office on at least 130 occasions over 18 months to obtain cheques written exclusively by Ms. Booker, on a more frequent basis than a part-time employee would attend this office, yet Ms. Wyer did not work for Mr. Nabi, and then immediately after obtaining the cheque from Ms. Booker, she walked around the corner and cashed the cheque leads to the only reasonable conclusion that Ms. Wyer was all too aware of the fact these cheques were unauthorized, they were not legitimate advances on the inheritance and in fact, they significantly exceeded the cheque that would not come in for 15 months after she first started receiving cheques. The quantity and amount of these cheques are so incredible and extraordinary as to defy any reasonable or rational blind belief in the position taken by the defence that Mr. Nabi was doing this out of generosity because of Ms. Wyer’s dire financial circumstances. Even on the day the insurance proceeds were received, May 8, 2014, when three other individuals received substantial Trust cheques ($15,000 each), including a further Trust cheque to Ms. Wyer for $10,000 – Ms. Booker wrote Ms. Wyer a separate General account cheque for $500, on the same day. This does not accord with common sense or everyday human experience if the cheques to Ms. Wyer were just advances on an inheritance because of Ms. Wyer’s dire financial circumstances. This position is completely beyond belief and inconceivable.

[144] In my view the circumstantial evidence led in this trial proves beyond a reasonable doubt, as required by Villaroman that the only reasonable inference or conclusion is that Ms. Wyer was fully aware of her part in aiding Ms. Booker’s fraud and the evidence goes significantly beyond proving beyond a reasonable doubt Ms. Wyer’s suspicion was aroused to the point where she saw the need for further inquiries, but made a deliberate choice not to make those inquiries. On the totality of the evidence in this case I find Ms. Wyer knew the cheques she received were not advances on her inheritance and were not being authorized by Mr. Nabi for the reasons indicated above. As a result, I am satisfied beyond a reasonable doubt as to her guilt in respect of the charge of fraud over $5,000 as a party to the offence of fraud over $5,000 perpetrated by Ms. Booker.

[145] Ms. Weis submitted in her submissions that I “should infer that Ms. Wyer had a particular motivation to immediately cash these cheques she got from Ms. Booker at a facility near where Ms. Booker worked.”[^54] Ms. Weis did not take this submission to its logical and obvious conclusion, which leads to whether a factual conclusion flows from the circumstantial evidence in this case that both Ms. Wyer and Ms. Booker shared in the monies from the cheques payable to Ms. Wyer over the 18 months she received them from Ms. Booker. Ms. Booker denied this suggestion by the Crown in her cross-examination. I have reminded myself that circumstantial evidence may or may not prove a fact from which an inference may be drawn, that is, a factual conclusion that logically and reasonably flows or may be drawn from that evidence. I have also reminded myself that the only inferences that may be drawn are those based solely on the evidence in this case and I must not engage in conjecture or speculation. It is the cumulative effect of all of the evidence that must meet the standard of proof beyond a reasonable doubt, not each individual piece of evidence. The final issue for me to determine on the whole of the evidence therefore is whether all of the money received by Ms. Wyer from the cheques prepared by Ms. Booker was kept by Ms. Wyer or whether a portion of those monies were provided by Ms. Wyer to Ms. Booker after the cheques were cashed.

[146] There are a number of factual findings that relate to this issue:

1. I rejected Ms. Booker’s evidence that Emily Wyer was a client of Mr. Nabi’s and I found she completely handled all aspects of the Toronto Superior Court application to have Ms. Wyer appointed as her brother’s Estate Trustee.

2. I found Ms. Booker removed Mr. Nabi’s email from the firm’s letterhead so he would not discover she was involved in bringing this application.

3. The application was commenced in July 2012 according to the Superior Court file, Exhibit 31, and the first cheque of $500 was paid to Ms. Wyer from Mr. Nabi’s general account on December 14, 2012.

4. Ms. Booker wrote cheques to Emily Wyer for 15 months prior to the London Life insurance being received at Richard Nabi’s law firm. According to Ms. Booker she received all the mail and opened it unless it was marked “Private and Confidential.”

5. Ms. Booker claimed not to really know very much about Ms. Wyer, yet she handled the Superior Court application and began paying her substantial amounts of money even before Ms. Wyer was appointed as the Estate Trustee and before any funds belonging to the estate of Kyle Wyer were deposited to Richard Nabi’s Trust account for distribution. Ms. Booker, as I found, knew more about Ms. Wyer’s circumstances than she was prepared to reveal: the circumstances of her brother’s death, the finding of his bones in a field and DNA proving the remains were his, Ms. Wyer being on ODSP and having financial problems, Ms. Wyer was paying rent to Gwen Picard, she had a pet and veterinarian bills, Ms. Wyer did not have a car, she took taxis to the Nabi office, to name a few of the details she knew.

6. On Ms. Booker’s evidence Ms. Wyer was calling daily asking when the next cheque would be ready for her to pick up. This was for a period of over 18 months. Ms. Wyer came to the office at least on 130 occasions during this same period.

7. Ms. Wyer received 83 Trust and General account cheques all written by Ms. Booker for $60,875 and two (2) Trust cheques to Robert Wyer were paid by Ms. Booker, totalling $38,806.26,[^55] although Robert Wyer’s signatures on the cheques are very different from the initial documents in the Toronto Superior Court, which were also different with each other (two are similar but different with the third signature). This left only $13,735.44 remaining from the London Life cheque. No other monies are noted as being received in respect of Kyle Wyer’s Estate, although a further cheque from London Life in the amount of $362.93 was received on May 13, 2014, although it was deposited by Ms. Booker to Sandra Wendler’s file 4500-a.

8. After the London Life insurance proceeds cheque in the amount of $113,416.70 was received and deposited by Barbara Booker in the Estate of Kyle Wyer Trust ledger, immediately cheques payable to 3 individuals (Casey Sullivan, Kasey Wyer and Christopher Hicks, $15,000 each) and a further $10,000 cheque to Emily Wyer, a Trust cheque drawn on 4466 Trust ledger, as well as a $500 a General cheque payable to Emily Wyer were all issued by Ms. Booker, all on the same date, despite there only being $13,735.44[^56] remaining from the London Life insurance proceeds. Mr. Singh alleged there were other insurance proceeds but Ms. Booker did not testify this to in fact be the case.

9. Ms. Booker subsequently issued another 53 cheques, both Trust and General account cheques, to Emily Wyer for the further amount of $38,350, despite the fact there was no funds remaining from the London Life proceeds. As a result, the monies paid to Emily Wyer and other beneficiaries of the Estate of Kyle Wyer and drawn on Richard Nabi’s Trust and General accounts exceeded the London Life proceeds by $80,114.56.[^57] This is a significant amount of money in excess of the London Life proceeds, quite apart from the fraud committed in relation to his Trust account, as there were no monies in trust.

10. There are many irregularities in the accounting records created and kept by Ms. Booker on PC Law, cheque numbers posted in the PC Law ledgers are different from the actual cheque number, the dates in PC Law are different from the dates on the actual cheques and some of the amounts are different. For the most part, the cheques written in favour of Emily Wyer did not have a description of what the cheque was for in the Memo line of the cheque. Trust cheques usually had “Estate of Kyle Wyer”, “RAN 4466” or “4466,” although the occasional Trust cheques (only two cheques, March 10, 2014: $300 and May 23, 2014: $1000) did not have any description in the Memo line.

11. Ms. Booker opened the files in the law firm, assigning file numbers and descriptions of those files. She created two files respecting Emily Wyer, for no discernable purpose, the file 4477 was never closed or balanced despite $11,600 in General cheques being written, with no monies ever being placed in Trust. Improper entries are reflected between different files and Trust accounts that have no connection to each other and no reason to be inter-connected. I have found, based on the evidence led during this trial, all of the PC Law records were created by Ms. Booker and Mr. Nabi was not involved in their creation at all. Ms. Booker, as a secretary/bookkeeper for over 10 years knew the impropriety of writing Trust cheques when there was no money in the Trust account, yet this was a common features of the Estate of Kyle Wyer, 4466 Trust account and the Sandra Wendler, 4500-a Trust account. In my view these irregularities and improper entries were performed by Ms. Booker to conceal and obscure the fraudulent activity she was engaging in with Ms. Wyer in respect of Richard Nabi & Associates Trust and General accounts.

12. When Ms. Wyer came to Mr. Nabi’s offices to pick up her check from Ms. Booker she always came by taxi and then after obtaining the cheque she walked around the corner to the Money Mart and paid fees for immediate cash. Why not have the cheque mailed to her address and then deposit it to the Bank of Montreal in Fort Erie, where Ms. Wyer deposited 6 of the cheques and where there are no fees? Why take the cheques to Money Mart and obtain cash unless Ms. Wyer was providing cash to someone else?

13. Ms. Booker displayed a strong dislike of Richard Nabi. She did not respect him, she described him as being mean to her, demeaning in the responsibilities he forced on her, she felt Mr. Nabi acted as if he was superior to her, she did not like working for him, she felt trapped in her job and could not leave because she needed the money. Ms. Booker described how she was required to take out the trash, wash the dishes, perform housekeeping duties, and shovel the snow in the winter. She testified these feelings towards Mr. Nabi began within the first two weeks of starting to work for him. She felt sick going into work as Mr. Nabi was aggressive towards her. She left right at 5 p.m. as she did not feel comfortable being alone with him. Mr. Singh submitted Ms. Booker had no motive to defraud Mr. Nabi. I do not agree with this submission. In my view she had a strong motive to defraud Mr. Nabi because of her dislike and lack of respect that she indicated she had within two weeks of starting work for him in 2002.

[147] Mr. Singh submitted there was no evidence Ms. Booker benefitted financially from the 140 cheques, worth close to $100,000, that she wrote to Emily Wyer over a period of 18 months. Considering the totality of the evidence, a brief summary of which I have set out above, it is my view there is only one reasonable and rational conclusion or inference available from that evidence and that is the Barbara Booker and Emily Wyer were involved together and shared in the monies generated from this fraud. This conclusion is the only logical and reasonable interpretation available considering the totality of the evidence heard during this trial. At the present time I do not have sufficient evidence to determine the exact sharing of the monies that occurred, but the only reasonable inference available that accords with common sense, logic and everyday human experience is that Ms. Booker and Ms. Wyer were involved together in this illegal scheme, which clearly created a significant risk of deprivation at its outset but ultimately caused substantial loss to Richard Nabi and I find Ms. Booker received some of the monies she paid to Ms. Wyer.

[148] As I have already indicated both Barbara Booker and Emily Wyer will be found guilty of the offence of fraud over as the Crown has proved their guilt beyond a reasonable doubt.

5. The Utter Forged Document Charge (Barbara Booker Alone)

[149] Ms. Booker is also facing a charge of knowingly utter a forged document in respect of Yanet Cernicharo Diaz. It is alleged that Ms. Diaz retained Richard Nabi to prepare an uncontested divorce from her spouse, Todd Shields. The application for divorce took an inordinate length of time to be issued, with Ms. Diaz calling repeatedly asking if it had been issued until finally Ms. Booker contacted her in November 2014 and advised her to attend the office to pick up her divorce. The Divorce Order provided to Ms. Diaz was fake and not a proper court order. The sole issue in this case is whether the Crown is able to prove beyond a reasonable doubt that Ms. Booker was aware the Divorce Order was a fake and intended to deceive Ms. Diaz.

[150] The Crown requested an amendment pursuant to s. 601(2) of the Criminal Code of Canada to the dates in Count 6 respecting this charge to conform with the evidence heard during the evidence. It is my understanding there is no objection to this by the defence and it is my view that Ms. Booker has always been fully aware of the allegation respecting this charge and the amendment of the date to conform with the evidence presented in the trial, namely, September 9, 2014 to November 2014 in the Information, Count 6, is hereby ordered.

i. Factual Background and Findings of Fact

[151] Ms. Diaz had been referred to Mr. Nabi by Michael George, who knew Ms. Diaz. Mr. Nabi first represented Ms. Diaz to provide her independent legal advice in respect of a separation agreement that had been prepared by her husband’s lawyer. Mr. Nabi was also involved in the sale of Ms. Diaz’s home,[^58] which Ms. Booker primarily handled as it was a real estate transaction.

[152] On September 9, 2013, Ms. Diaz was interviewed by Mr. Nabi concerning her divorce, this appointment is reflected in the appointment book kept by Ms. Booker.[^59] A divorce file for Ms. Diaz is opened by Ms. Booker.[^60] After this first interview Ms. Booker arranged for Ms. Diaz’s marriage certificate to be translated from Spanish to English, which was completed by September 20, 2013.[^61]

[153] Ms. Diaz had her second and final meeting with Mr. Nabi concerning her divorce on October 23, 2013. In Exhibit 5, which contains the documents filed by the Crown relating to Yanet Diaz, at Tab 2, there is a cheque dated October 23, 2013, in the amount of $1222.35 written by Yanet Cernicharo Diaz, with a notation on the Memo line: Lawyer fee. Prior to Ms. Diaz’s appointment, Ms. Booker had typed up a Form 8A Application for Divorce, which is required by the Family Law Rules to commence a divorce proceeding. Ms. Booker agreed this was the first stage of getting the divorce application filed, which she knew because she looked this up in the Family Law Rules, Rule 8(1) – “Starting a Case.”[^62] Ms. Diaz signed the Form 8A Application for Divorce when she met with Mr. Nabi as both Ms. Diaz’s and Mr. Nabi’s signature are on this document and it is dated October 23, 2013. On the Form 8A the box beside “Simple” has an “X” in it, signifying “Divorce only,” and this also indicates it is not a joint divorce whether both spouses are bringing the application. Ms. Diaz also signed a Form 36 Affidavit for Divorce, which is not filed unless, after the divorce proceeding begins in court and the respondent spouse has been served, the respondent spouse does not file an answer to the claim (Exhibit 37, Family Law Rules, Rule 36(5) (starting a divorce proceeding), which Ms. Booker signed as a commissioner for taking affidavits.[^63]

[154] Ms. Booker agreed she also knew a “Continuing Record,” under Rule 9(1),[^64] was required to be filed with the Superior Court.[^65] She also agreed she knew the “Continuing Record” had to be served on all parties, which would include Ms. Diaz’s husband, and this was also required to be filed with the court. In the Diaz file there are two Continuing Records, the first does not have a Court File # and is located at Exhibit 21A, Tab 5, p. DIAZ 123-124. The second Continuing Record in the Diaz file is located in Exhibit 21A, Tab 5, p. DIAZ 160-161 and it has a Superior Court number: #D24755/14. I will discuss the significance of this second Continuing Record later in my reasons.

[155] After October 23, 2013, Ms. Booker agreed she was tasked with arranging the “Continuing Record” and the Form 8A to be filed with the court and having Ms. Diaz’s husband served with a copy of these forms. She also knew there was a fee associated with the initial filing of these documents, $167. None of these requirements were arranged and completed by Ms. Booker for an entire year. Ms. Booker testified the translation of Ms. Diaz’s marriage certificate was the cause for this delay in filing the initial application, but this was not true as the translation was completed on September 20, 2013.

[156] Dorothy McIntosh was a clerk in the Welland courthouse in 2014. Exhibit 1 is an agreed statement of fact relating to Ms. McIntosh’s evidence and Exhibit 2 is her statement, provided when she was a Supervisor, Court Operation in Brampton Superior Court, which was agreed to by all counsel in order to obviate the necessity of her having to testify on this trial. According to Ms. McIntosh there are fees at the two stages for the divorce process: 1) when the initial application for a divorce is filed with the court, there is a cost of $167, and 2) when any secondary documents are filed there is a further cost of $280. It was the evidence of Ms. McIntosh that no secondary documents were ever filed for the Diaz divorce and the further fee was never paid.

[157] In June 2014, Ms. Booker prepared a cheque in the amount of $167, dated June 23, 2014. This cheque was discovered loose, undeposited, in the Diaz file RAN 4769-a. This cheque was not provided to the Court. When it was suggested by the Crown to Ms. Booker that this cheque demonstrated she knew the initial filing of the Form 8A had not occurred by June 2014, she responded, “It appears so.” When she was asked whether that was a yes or a no, she responded, “I don’t recall.” In my view this is an example of Ms. Booker not being truthful and being evasive, as the presence of this cheque, #5587 being in the file, clearly demonstrates Ms. Booker did not follow up with what she had been tasked to do eight months previously in October 2013, when Ms. Diaz met with Mr. Nabi for the second time concerning her divorce. Later in her cross-examination Ms. Booker conceded that the Diaz divorce application had not been filed and in June 2014 she was preparing to file it but it was not filed at that time.

[158] Ms. Diaz testified, and Ms. Booker agreed that Ms. Diaz was calling the Nabi office repeatedly and speaking to Ms. Booker asking what was taking so long in obtaining her divorce. According to Ms. Diaz Ms. Booker always had excuses for why the divorce had not come through from the court.

[159] In June 2014, Ms. Booker also prepared a request for a clearance certificate from the Central Registry of Divorce Proceedings (CRDP) that the Superior Court required after the application was filed, to ensure there was not already a divorce proceeding commenced in another jurisdiction.[^66] The signature of a court official is blank and the date is incomplete, it is typed “2014-06-” in the request, which in my view indicates this form still had to be finalized and filed. Rule 36 in the Family Law Rules, which Ms. Booker agreed she was familiar with, clearly indicates this CRDP form is required where it is not a joint application for divorce. Ms. Booker agreed before a Divorce Order could be issued this signed form, as well as the affidavit of service of Form 8A on the respondent husband, needed to be filed with the Superior Court. Ms. Booker also agreed she knew this divorce application was not a joint application and that the respondent was Todd Shields, Ms. Diaz’s husband. In my view these admissions are significant in determining whether Ms. Booker knew the Divorce Order she provided to Ms. Diaz could have been issued by the Superior Court in Ms. Diaz’s case.

[160] When Ms. Booker was directed to Exhibit 123-124, the original “Continuing Record,” she testified she believed it was sent to the court and they required it to be changed. This does not make any logical sense as most of the documents which are set out in the Index on the second page of the “Continuing Record” do not have completed dates.

Document	Filed By	Date	Date of Filing	Tab
Application	A	23/10/2013	,2014	1
Separation Agreement	A	10,04,2013	,2014	2
Affidavit of Divorce of Yanet Diaz	A	23/10/2013	,2014	3
Affidavit General of Yanet Diaz	A	07/18/2014	,2014	4
Affidavit of Service	A	14 11 2013	,2014	5

There is no file number marked on the Form 8A, Application for Divorce, which also leads to a reasonable inference that it was not filed in 2013. Further, if this had been filed shortly after October 2013, with the Form 8A then there would also have been paid the initial filing fee of $167. There is no cheque for $167, dated in 2013, noted in the ledger for Ms. Diaz’s divorce file, however, there was a loose cheque, dated June 23, 2014, in the Diaz file, which was not provided to the Superior Court even in June 2014.

[161] In August 2014 Ms. Booker prepared a further affidavit for Ms. Diaz that reported Ms. Diaz’s address had changed from Lakeview Road to Phipps Street.[^67] This affidavit was not signed by Ms. Diaz. Ms. Diaz testified she contacted Mr. Nabi’s office repeatedly to complain to Ms. Booker about the significant delay in getting her divorce. Ms. Booker advised Ms. Diaz that Richard Nabi was giving her a refund of the legal fees she had paid for the divorce because of the delays. This cheque, in the amount of $734.50, dated October 2, 2014, is signed by Ms. Booker but does not have any explanation noted in the Memo line of the cheque.[^68] Ms. Booker provided this cheque to Ms. Diaz. Mr. Nabi testified he did not authorize this refund and was completely unaware of any refund being provided to Ms. Diaz. This refund cheque was not recorded in the Diaz ledger relating to Ms. Diaz’s divorce or the other Diaz file ledger dealing with the sale of Ms. Diaz’s house.[^69]

[162] Interestingly, there is a cheque payable to the Ministry of Finance where the memo line reads “Diaz divorce,” in the amount of $167, which is dated and signed by Ms. Booker on October 28, 2014.[^70] This cheque was presented with the completed Form 8A Application for Divorce when Carolyn Baer filed for the first time the application to commence the divorce proceeding in the Welland Superior Court on November 5, 2014.[^71] The final Form 8A Application for Divorce, bound with the separation agreement in a “Continuing Record” from Ms. Booker, along with this $167 cheque to cover the initial application fee, was picked up Ms. Baer from Ms. Booker, and she then filed it with the court and received the Court File number D244755/14. Dorothy Lyn McIntosh’s stamp is on page 3 of the Form 8A, Application for Divorce and the date of issue is marked as November 5, 2014.[^72]

[163] The “Continuing Record, Cumulative Table of Contents”[^73] only has two entries (as opposed to the 5 entries reflected on the original Continuing Record drafted by Ms. Booker[^74]). The two entries, which match the attachments filed by Ms. Baer on November 5, 2014, are the Application (Form 8A) and the Separation Agreement between Ms. Diaz and Mr. Shields.

[164] In November of 2014, Ms. Booker called Ms. Diaz and advised her that the Divorce Order was ready to be picked up at the law firm’s office. Ms. Diaz testified she received a telephone call advising her to come to the office to pick up the Divorce Order, which she did.

[165] Based on the evidence of Ms. McIntosh,[^75] there were numerous preconditions that were not met at the time Ms. Booker presented Ms. Diaz with the Divorce Order, dated November 5, 2014 with Dorothy Lyn McIntosh’s stamp affixed where the Judge’s signature is normally written.[^76] The normal procedure required to complete a Divorce Application is set out in the materials provided by Ms. McIntosh and agreed to by Ms. Weis and Mr. Singh.[^77] As indicated by Ms. McIntosh a Judge’s signature is required on a proper Divorce Order. A Divorce Order with a “stamp” of the clerk’s name is only provided as a file copy to the lawyer. Most of the preconditions, which Ms. Booker agreed in cross-examination she was fully aware of had not been met. This leads to the irresistible reasonable inference that Ms. Booker knew it would have been impossible for the Superior Court to have issued a Divorce Order, particularly on the same day (November 5, 2014) Ms. Baer filed the Form 8A, Application for Divorce.

[166] The preconditions that were not complied with as noted by Ms. McIntosh:

1. Ms. Diaz’s spouse, Todd Shields was not served with the Application for Divorce;

2. Proof of service to the respondent was not filed with the court;

3. A second filing fee of $280 was not ever paid to the court;

4. The CDRP clearance certificate was not provided by the CDRP and filed with the court until December 4, 2014;[^78]

5. The respondent, Mr. Shields was entitled to 30 days to respond after receiving service of the Divorce Application, assuming the service was effected on the same day as the Divorce Application was filed with the court the earliest this could have occurred is December 5, 2014;

6. If Mr. Shields had not responded then Ms. Diaz had to file the Form 36 Affidavit to advance the Divorce Application, which did not occur.

[167] Of course, pursuant to Ms. McIntosh’s statement, which was agreed to by both counsel, the Divorce Order was a complete fake.[^79] Not only was the Order fake, it falsely claimed the application for divorce was a joint application by Yanet Cernicharo Diaz and Todd Shields. The Form 8A clearly indicated it was not a joint application, which was why Mr. Shields had to be served with the Divorce Application, and Ms. Booker admitted she knew it was not a joint application in her evidence. The Court File Number on the Divorce Order was incorrect, it read D247555/14, when it should have read D24755/14. This file number was created and entered on the same date the Divorce Order was purported to be approved by The Honourable Justice C.C. Tucker.

[168] The evidence led by the Crown concerning the payment of the two fees required by the Superior Court ($167 and $280) clearly demonstrates that only the $167 fee was paid. Exhibit 3 are the PenFinancial Credit Union Bank Statements of Richard Nabi’s General Account, on which the two required cheques to the court would have been written by Ms. Booker and paid from. Only the $167 cheque is reflected in the Bank Statement for November 2014. The cheque is Cheque #5790 and is dated October 28, 2014.[^80] On the back of the cheque is the Superior Court File # 24755/14, which is Ms. Diaz’s Divorce Application. There is no cheque in the amount of $280 drawn on the Nabi General or Trust accounts for November or December 2014[^81]

[169] The File #4769-a ledger[^82] for Ms. Diaz’s divorce, prepared by Ms. Booker reflects both cheques ($167 and $280) as being dated October 25, 2013, which is not the date for the $167 cheque payable to the Minister of Finance (Exhibit 3, p. PF-302) provided by Ms. Baer on November 5, 2014. The date of that cheque was October 28, 2014, a full year after the entry posted to the Trust ledger). As I indicated above, there is no cheque in the amount of $280 paid to the Minister of Finance in respect of the Diaz Divorce Application. The cheque number posted in the PC Law Diaz Trust ledger for both cheques is 0804, which is not accurate. This was prepared by Ms. Booker. A further irregularity in this ledger is the fact that the cheque payable to Carolyn Baer, #5804, in the amount of $40[^83] is also not listed. Further, the refund of $734.50 cheque, payable to Janet Cernicharo Diaz, dated October 2, 2014, signed by Barbara Booker, with no explanation in the Memo line for what the cheque was for, was never recorded in the 4769-a ledger. The ledger does show the receipt of the cheque ($1222.35) from Ms. Diaz, on October 25, 2013 (it is dated October 23, 2013), and the fact that the total amount has been used to provide payment for both fees ($650), disbursements ($483.15) and taxes ($89.20).

[170] Interestingly, there is a cheque recorded in the purchase Emerick file #4929, created by Ms. Booker, which related to the house purchase and sale Ms. Diaz retained Mr. Nabi to handle. In the 4929 ledger this cheque is dated October 28, 2014, in the amount of $287, cheque #5788 and payable to the Minister of Finance.[^84] Cheque #5788 is not a cheque payable to the Minister of Finance, rather, it is a cheque payable to Ms. Booker, dated October 24, 2014, and is her wage cheque in the amount of $532.51.[^85] There is no cheque payable to the Minister of Finance in October, November or December 2014, in the amount of $287 in the Nabi General account PenFinancial Bank Statements.[^86] I find this cheque does not exist, was not written by Ms. Booker and was never paid to the Superior Court. It is my view these various entries, which I have described as irregularities were entered into Ms. Diaz’s Trust ledger, 4769-a, to make it appear as if everything had been completed by Ms. Booker respecting this Divorce Application for Ms. Diaz.

[171] A final irregularity is a disbursement to Edward Booker, Ms. Booker’s husband, in the amount of $30.00, dated on November 22, 2013, cheque #5268, to serve documents. There is a cheque payable to Edward Booker on this date in Exhibit 3, p. PF 152; however, there were no documents to serve in the Diaz Divorce Application on Ms. Diaz’s husband, Todd Shields, because the Form 8A Application for Divorce and the Continuing Record had been not filed by Ms. Baer with the Superior Court until November 5, 2014. Further the initial filing fee of $167 had not been paid until November 5, 2014 and this would also affect the service of documents on Ms. Diaz’s husband. The cheque to Edward Booker does not reference a File number (such as 4769-a, which was Ms. Diaz’s separation and divorce file, opened by Ms. Booker) and there is no way to confirm this payment relates in any way to the Diaz file. It is my view Ms. Diaz added this payment to this ledger 4769-a to create the impression Ms. Diaz’s husband had been served, when he had not. It is clear from the documentary evidence and I find Ms. Booker did nothing on Ms. Diaz’s divorce application for over a year after Ms. Diaz retained Mr. Nabi and the matter had been turned over to her to obtain the Divorce Order.

[172] Ms. Booker testified these errors were because she was six months behind in her bookkeeping; however, it is my view the irregularities in this ledger cannot be explained by Ms. Booker being behind in her work, rather they show a deliberateness and intent to disguise or conceal the true state of affairs.

ii. Allegations by Defence that Mr. Nabi Removed Documents from the Diaz Divorce file #4769-a, that he had a Motive to Fabricate and the Defence Criticism that Mr. Nabi Requested an Extension to Respond

[173] When Mr. Nabi was contacted by the Law Society by letter, in March 2018, concerning Ms. Diaz’s complaint, he had been living in Florida from November until April each year for three years. He requested an extension of time, which the Law Society investigator granted. In fact, the investigator granted a second extension. I do not draw any adverse inference from his request. Mr. Nabi had been dealing with the Law Society respecting the Sandra Wendler cheque since 2017, after retaining IT experts to access the PC Law program used exclusively by Barbara Booker and hiring an accountant to determine where the Wendler cheque monies went. He self-reported the missing money from the Wendler cheque to the Law Society on October 9, 2017.

[174] As soon as Mr. Nabi was advised there was a problem with Ms. Diaz’s divorce Mr. Nabi contacted Michael George’s office and requested they locate any files related to Yanet Diaz. Upon his return to Canada after April 2018 he obtained those files and responded to the Law Society. For the same reasons I expressed previously, I found Mr. Nabi to be a credible, careful, fair and forthright witness. The various events involved in these matters occurred over the years 2013 and 2014. I recognize this can create difficulties for any witness or party to these proceedings in terms of reliability because of the passage of time (7-8 years). I find Mr. Nabi did not remove any documents from the Diaz file, Ms. Booker, who agreed she was tasked with meeting the various preconditions necessary to obtain the Divorce Order for Ms. Diaz, clearly did nothing on these steps and preconditions until she arranged for Ms. Baer to file the Continuing Record and pay the initial fee of $167 to commence the divorce application. This did not occur until November 5, 2014. I have found the other entries in the PC Law ledger respecting 1. Payment of $280 on October 25, 2013; and 2. Service of the Form 8A, Application for Divorce by Edward Booker in November 2013, never occurred. This was why there was no Affidavit of Service filed with the Continuing Record on November 5, 2014, by Ms. Baer. It did not exist because the $30 fee paid to Edward Booker on November 22, 2013, for serving documents was not in respect of the Diaz divorce. If it had been, this document would have been in the file and Ms. Booker, who prepared the Continuing Record would have included it. In my view Mr. Singh’s allegations are nothing more than smoke and mirrors, as there was nothing to remove from the file. In my view Mr. Singh’s allegation amounts to pure speculation, with no foundation or substance in the evidence presented during this trial.

[175] In my view Mr. Singh’s repeated allegation of Mr. Nabi having a “clear, strong and proven motive to fabricate evidence,” does not find any support or confirmation in the evidence presented during this trial. As I pointed out when I dealt with this allegation during my assessment of Mr. Nabi’s evidence on the fraud over charge, Mr. Nabi repeatedly invited scrutiny by others, which in my view is not the conduct of someone who has something to hide.

[176] Mr. Singh submitted I should accept Ms. Booker’s evidence that she received the Divorce Order from Mr. Nabi. Of course the only evidence the Divorce Order was provided to Ms. Booker to give to Ms. Diaz comes from her and given my findings of fact respecting her alterations, omissions and late additions in the PC Law ledgers that Ms. Booker was actively engaged in attempting to create the impression all of the preconditions were completed when they were not and her attempts to conceal and disguise the true state of affairs, I do not accept her evidence of this issue.

iii. Analysis and Conclusion

[177] Mr. Singh conceded Ms. Booker provided Ms. Diaz a Divorce Order that was a forgery, there can be no question or uncertainty, based on the evidence of Ms. McIntosh, that anyone with any rudimentary basic understanding of the preconditions necessary for a Judge to sign a Divorce Order would know the Order provided by Ms. Booker to Ms. Diaz was a fake.[^87] The actus reus of the offence of uttering a forged document is clearly proven beyond a reasonable doubt on the evidence presented in this case.

[178] The question remaining is whether Ms. Booker knew the document was forged when she provided it to Ms. Diaz and intended to deceive Ms. Diaz about its nature.[^88]

[179] Ms. Booker attempted to give the impression she was inexperienced with the preparation of a simple Divorce Application, however, on her own evidence she testified Mr. Nabi did a couple of divorce applications a year. She was trained as a law clerk and when she was asked about the various steps and preconditions Ms. Booker testified she knew how to look up the Family Law Rules and she agreed when she was referred to each of the necessary steps she knew what they were and what she needed to do. Ms. Booker testified in chief, “The client would come into the office and provide instructions to the lawyer. He would give me documents to type. And they would be filed with the court, they would be served and then the final document would be filed at the court and the certificate would be granted.” She understood and knew the various documents that needed to be prepared, including the Form 8A, the Continuing Record, Form 36, the various different affidavits: to prove Ms. Diaz’s husband was served, to attest that her husband was served but did not file a response and so on. Ms. Booker knew a foreign marriage certificate in a different language had to be translated into English and she knew the Superior Court needed the marriage certificate and translation to be filed. She knew the CRDP clearance certificate had to be filed. She knew there were two fees required to be paid to the Superior Court. These were all preconditions before the Divorce Order could be signed by the Judge who reviewed the file.

[180] In my view, when Ms. Booker handed Ms. Diaz the Divorce Order and told her she was divorced, Ms. Booker knew that this was impossible. She had only instructed Ms. Baer to file the initial fee of $167 on November 5, 2014, along with the “Continuing Record,” which only included the Form 8A, which had been signed by Mr. Nabi and Ms. Diaz on October 23, 2013, and the Separation Agreement, dated April 3, 2013. It did not contain the marriage certificate from Cuba nor the translation. It did not have any affidavits dealing with service of Ms. Diaz’s husband or an affidavit signed by Ms. Diaz as there was no response from husband or the affidavit providing her change of address that was in the file. Ms. Booker testified she knew the CRDP clearance certificate had not been provided by the government (it was not received by the court until December 4, 2014). She also knew she had not paid the second fee for the divorce application. She knew all this because she prepared the initial application, which she arranged for Carolyn Baer to file with the Superior Court. She also knew Todd Shields, Ms. Diaz’s husband had not been served either prior to or on November 5, 2014. Ms. Booker admitted this to Ms. Diaz who was calling and complaining why it was taking so long, according to Ms. Diaz’s evidence, Ms. Booker told her “We haven’t been able to do it today, we will do it tomorrow. My husband is the one that served the – that serves these things and he’s busy at work.” Ms. Booker admitted Ms. Diaz’s husband had not been served.

[181] It is my view the irregularities in the ledger in PC Law dealing with the divorce application proves beyond a reasonable doubt Ms. Booker knew the Divorce Order was a forgery. I find those irregularities were a deliberate attempt by Ms. Booker to conceal and obfuscate her actions. Ms. Booker may very well have been behind in her work, she certainly was respecting Ms. Diaz’s divorce application, she did nothing for a year. She knew Mr. Nabi was retiring in less than two months when she finally hired Ms. Baer to file the cheque and documents she did on November 5, 2014; however, it was not enough to obtain the Divorce Order, as so many preconditions had not been met. Each of the two ledgers for Ms. Diaz show a payment to the Minister of Finance for $280 and $287 (which is not the correct amount) and neither of these cheques exist, in fact Ms. Booker entered cheque numbers in PC Law which are for other actual cheques, like her wage cheque. The refund Ms. Booker says Mr. Nabi instructed her to pay is also not reflected in the ledgers. Mr. Nabi testified he did not give Ms. Booker that instruction.

[182] It was Ms. Booker’s position that Ms. Baer or Mr. Nabi picked up the Divorce Order from the Superior Court and then gave it to her to give to Ms. Diaz. This makes absolutely no sense, as the Divorce Order is dated on the same day as Ms. Baer filed the documents Ms. Booker provided her to file and Ms. Baer only paid the initial fee ($167) to commence the divorce application as required by the court. Ms. Booker always answered the phone in Mr. Nabi’s office, so if the court clerk had obtained the Divorce Order later and called Mr. Nabi’s office they would have spoken to Ms. Booker. This also does not make any sense as the court would clearly know Ms. Diaz’s Divorce Application had just been commenced and was incomplete, so it would be impossible for the court clerk to have said to Ms. Baer, “Please just wait for a moment while we get this Divorce Order reviewed and approved.” Ms. Baer would have no reason to draft a fake Divorce Order.

[183] If the court clerk and Ms. Baer had no plausible reason to create the fake Divorce Order the only person Ms. Booker could say did it would be Mr. Nabi. This was why Mr. Singh alleged Mr. Nabi removed documents from the Diaz file and/or altered the PC Law records relating to Ms. Diaz’s divorce to create the impression everything was completed in making the application for Ms. Diaz’s divorce. It is my view that Mr. Nabi did not remove any documents from the files relating to Ms. Diaz as there is no basis upon which to support such an allegation. Mr. Nabi did not alter anything in PC Law. In fact, Ms. Booker admitted to making all of the entries relating to Ms. Diaz’s divorce application. She attempted to explain the October 28, 2014 errors respecting the $287 cheque she entered into Ms. Diaz’s real estate file, on the basis that she was six months behind in entering items into PC Law, which was completely untrue. There was no $287 cheque, dated October 28, 2014, payable to the Minister of Finance, just like there was no $280 cheque, dated October 25, 2013, payable to the Minister of Finance. Perhaps Ms. Booker forgot she had entered the second required cheque in 2013, but neither cheque was real, they did not exist, they were never written or paid to the Minister of Finance in respect of Ms. Diaz’s divorce in 2013. The initial fee of $167 was not paid until October 28, 2014, yet Ms. Booker entered this as a $287 cheque, and she posted it to the real estate file. Also, there was a loose cheque in the file, written by Ms. Booker for $167, dated June 23, 2014, which was never paid to the Court and never deposited to the Court’s bank account.

[184] Mr. Nabi was completely unaware of what stage Ms. Booker was in her work completing the necessary forms and meeting the preconditions respecting Ms. Diaz’s divorce, so again, he would be unaware Ms. Baer had just filed the Form 8A and had only paid the initial fee of $167, more than a year after Ms. Diaz first saw Mr. Nabi. He did not know Ms. Diaz’s husband had not been served. He provided the file, according to Ms. Booker, immediately after his first interview in September 2013, and it would be reasonable for Mr. Nabi to expect the divorce application to have been commenced shortly after Ms. Diaz provided her cheque retaining Mr. Nabi. It makes no sense for Mr. Nabi to put the date of October 28, 2014, on the Divorce Order. Further, he knew it was not a joint application because of his interview with Ms. Diaz and the Form 8A Ms. Booker agreed she filled out based on Mr. Nabi’s handwritten Form 8A, which indicated it was a simple divorce.

[185] Mr. Singh argued Ms. Booker provided “reliable, consistent, and credible evidence regarding her involvement on the Diaz matter.” For the reasons indicated above I did not find Ms. Booker to be reliable, consistent or credible in her evidence, in fact, on a number of occasions I found her evidence to be evasive and deceptive. Further, her explanation for why the PC Law Diaz ledger had numerous irregularities and cheques missing did not accord with common sense or everyday life experience.

[186] For all of the reasons indicated I reject Ms. Booker’s evidence that she was unaware the Divorce Order she provided to Ms. Diaz was forged, I find based on the totality of the evidence, she was fully aware it was a fake. Further, her evidence does not raise a reasonable doubt despite my having rejected it. On the totality of the evidence I accept, which includes Ms. Diaz’s evidence as to what Ms. Booker said to her in giving excuses for why the Divorce Order had not been received, Ms. Baer’s evidence respecting the documents she filed and the cheque she paid to the court to initiate the divorce application, and Mr. Nabi’s evidence respecting his involvement and knowledge of the Diaz file, it is my view the Crown has proven beyond a reasonable doubt Ms. Booker knew the Divorce Order was a fake. The evidence of these three witnesses is corroborated and confirmed by the documentary evidence in the PC Law records and the banking records. I find Ms. Booker deliberately and with intent altered and left things out of the PC Law ledger relating to Ms. Diaz’s divorce in an attempt to leave an impression the various preconditions had been met so that she could maintain she did not know that the Divorce Order was faked. She had a motive to give Ms. Diaz a fake Divorce Order, which is evidenced by her doing absolutely nothing to complete the preconditions required on this file for over a year. Ms. Diaz contacted Mr. George to complain, which resulted in further pressure on Ms. Booker to get the Divorce Order issued.

[187] A significant and damaging piece of evidence disclosed in the Diaz file ledgers is the cheque for $287 entered into the real estate file #4929. As indicated above, this was the wrong amount for the second fee, she entered the cheque # for one of her wage cheques, which had a completely different date because she knew there was no cheque for $280 or $287 paid to the Minister of Finance. In my view this is an example of her attempting to cover up her conduct. In my view the circumstantial evidence provides for only one reasonable inference or conclusion and that is that Barbara Booker is guilty of uttering a forged document as if it were genuine. I find on the totality of the evidence that Ms. Booker was fully aware the Divorce Order she gave Ms. Diaz was a fake and gave it to her intending Ms. Diaz would rely upon it as genuine.

Released: May 17, 2021

Signed: Justice Peter C. West

[^1]: R. v. W. (D.) (1991), 1991 SCC 93, 63 C.C.C. (3d) 397 (S.C.C.). [^2]: Ibid., at p. 409, per Cory J. [^3]: R. v. Avetsyan (2000), 2000 SCC 56, 149 C.C.C. (3d) 77 (S.C.C.) at paras. 20-22, per Major J. [^4]: R. v. Hull, [2006] O.J. No 311 (C.A.), at para 5. [^5]: R. v. Lifchus (1997), 1997 SCC 319, 118 C.C.C. (3d) 1 (S.C.C.). [^6]: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 55-56. [^7]: R. v. Wu, 2017 ONCA 620, [2017] O.J. No. 3868 (C.A.), at paras. 9 and 14-15. [^8]: R. v. Olan, Hudson and Harnett, 1978 SCC 9, [1978] 2 S.C.R. 1175. [^9]: Ibid. See also, R. v. Théroux, 1993 SCC 134, [1993] 2 S.C.R. 5, at para. 18. [^10]: R. v. Atwal, 2015 ONSC 4425 (SCJ, Hill J