R. v. Booker, 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 actedupon as genuine, to the prejudice of another: s. 366 Criminal Code; R. v. Hawrish (1986), (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...whodid not make it or authorize it to be made": s. 321 of the Code; R. v. Nousci (1991), (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 orbelieving that the document is forged, commits an offence contrary to s. 368 of the Code. While the crime requires an intent to deceive, itdoes not require an intent to defraud or to cause prejudice: R. v.

Valois, (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 ofResponsibilities 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.

Heinitially was hired to work for the Ministry of the Attorney General Employment Standards Branch where he worked for a year. He thenjoined a St. Catharines law firm where he practiced for three or four years. He 1991 he began working with another lawyer in Fort Erie ina two-man partnership. In 1995 he opened his own firm, Richard Nabi & Associates, practicing on his own and with various associatelawyers until his retirement on December 31, 2014. From 1997 or 1998 he shared space with another lawyer, Michael George, until heretired.

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 afair amount of real estate transactions and estate work, which involved doing client’s wills and power of attorney. In the years 2013 and2014 he practiced as a sole practitioner and had no associate lawyers working at his law firm. Mr.

Nabi was the President of the FortErie Bar Association for two or three terms and the President of the Welland County Bar Association for one term. His last secretary/lawclerk 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 secretarialduties such as handling the payment of expenses, setting up appointments for clients, filing reports necessary for the Law Society andLawPro, paying GST and HST, typing, opening files and preparing all cheques.

She was also his bookkeeper, prepared all of the firm’sbanking and accounting records using an accounting software program, PC Law. Ms. Booker described preparing all of the bank depositsslips for cheques received by the firm. She was trained as a law clerk and would often look things up in terms of court applicationprocedures, which according to Mr. Nabi, she did perfectly. She was employed by him for approximately 13 years, starting in 2002, up tohis retirement. [38] Mr. Nabi testified he had an excellent relationship with Ms. Booker and trusted her fully and completely, as if she were a partnerin the practice.

She was diligent, very pleasant and he received many compliments from clients about her over the 13 years she worked inhis law firm. There was one occasion when there was a problem with the banking books, Ms. Booker told him the bank made a mistakeand 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, moniesreceived on behalf of clients, expenses paid, into the accounting records.

She prepared all of the firm’s accounts or invoices to clientsfrom 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-timeemployee, 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 thoughhe 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 onnot 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, andit 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 workedfrom 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 layoutof the offices at 362 Mather Boulevard, Fort Erie, he and Mr. George shared. This address was a house converted into offices.

When aperson 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 wherethere were filing cabinets for the two law firms, where files and accounting records were kept. There was also a desk with a computer inan 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 toMs. 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 weresituated. The entrance to Mr. Nabi’s office opened into a hallway, leading to a washroom, which was to the right of the main hallwaycoming from the front entrance. Mr. George’s office was just beyond Mr. Nabi’s office and its entrance was into the hallway from thefront entrance just before a small waiting area with 4 chairs.

Across from Mr. George’s office was a kitchen area where there were stairsleading to the basement, which was used for storage and further down the main hallway were double doors leading to a board room atthe back of the building. Mr. Nabi testified his office had two windows that were mostly blocked by the built-in upper shelves andcupboards of his modular desk. He could not see the outside from inside his office. The remaining upper portion of these windows notblocked 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 nomonies 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 accountstotalling $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 insuranceproceeds 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 fromother insurance proceeds or assets relating to Kyle Wyer. There was a second insurance cheque from London Life, dated May 8, 2014, inthe amount of $362.93 (Exhibit 21B, Tab 12), payable to Emily Wyer. This cheque was dated 2 days after the $113,416.70 cheque wasissued 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 SandraWendler’s Trust account, 4500-a (Exhibit 33, p. 5). A further concern are two cheques also referred to on the same deposit slip, datedMay 13, 2014, for $6,654.18 and $508.50 with the following description after each cheque amount of Wendler 4466.

These two chequeswere 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 Trustaccount 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 providedmonies from Mr. Nabi’s Trust and General accounts from other insurance proceeds or other sources. There is no evidence to support thatsubmission and as a result I reject it. More importantly, the issue for me to decide is not whether Emily Wyer was entitled to moneyfrom the Estate of Kyle Wyer. Although Ms. Wyer was ultimately appointed estate trustee, this did not mean she was entitled to anyproceeds from the estate. Ms.

Wyer, as estate trustee would be required, as testified to by Mr. Nabi, to collect any assets of the estate, payoff 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 werepaid to her. Mr. Nabi was very clear that these payments were not approved and that he would never “lend somebody money on thespeculation 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 aboutthe existence of deposit insurance when promising to build residential homes for his customers. ‘[T]he appellant genuinely believed thatthe 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 theappellant believed the risk would not materialize…. The fact that he sincerely believed that in the end the houses would be built and thatthe risk would not materialize cannot save him’: R. v.

Théroux, (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 coveringthe unauthorized cheques. [72] The number and the amount of the cheques received by Emily Wyer do not accord with common sense and everyday lifeexperience. The cheques payable to Emily Wyer ranged from as low as $200.00 to as much as $10,000.00.[20] They were all rounddollar amounts. Ms.

Booker testified Emily Wyer would call her and request a cheque for groceries, for her rent, taking an animal to theveterinarian and she would specify the amount she needed. Ms. Wyer turned to Richard Nabi to provide funds to her to deal with herfinancial needs and Mr. Nabi agreed to pay these amounts, according to Ms. Booker’s evidence. As the Crown points out, most of thetime 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 receivedis absolutely absurd and Ms. Booker’s explanation for why this occurred was Mr. Nabi told her to pay these cheques to Ms. Wyer, anindividual 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 completelypreposterous and unbelievable. [73] Ms. Booker testified that Ms. Wyer called all the time with requests for money for different things and each occasion she wouldspeak to Mr.

Nabi who would authorize the cheque. When the Crown referred Ms. Booker to a Trust cheque written to Ms. Wyer onMarch 31, 2014, for $10,000, Ms. Booker could not recall what Ms. Wyer had said she needed $10,000 for. This cheque is not enteredinto the Estate of Kyle Wyer Trust account ledger, although the Memo line indicates “4466.” It is entered in the Wendler Trust ledgerbut on a different date, April 1, 2014. Ms. Booker had no recollection as to what Ms. Wyer said this cheque was for, nor could sheprovide any explanation why Ms. Wyer was requesting a $200 cheque dated April 2, 2014.

The cheque number for this cheque enteredinto 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 theGeneral account and sometimes there were several other cheques written between the two cheques. Sometimes the cheque numberentered into PC Law did not match the cheque number on the cheque and on occasion the amount of a cheque entered in the ledger didnot match the actual amount on the face of the cheque.

The Crown provided a calendar for 2013 and 2014 showing the days whencheques 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 May2014 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. Bookercould 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 andcash the cheque she received at Money Mart, which was within walking distance from the Nabi office. With the exception of six chequesMs. 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 5 th 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. Boo

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