TORONTO — Convicted theatre mogul Garth Drabinsky has lost an appeal through which he sought to reclaim his Order of Canada — an honour he was stripped of while serving a prison term for fraud.
In dismissing the case, the Federal Court of Appeal found there was no basis for it to intervene in the matter.
Drabinsky’s appeal targeted an earlier court decision that had turned down an application for judicial review in which he had asked the Order of Canada advisory council’s decision to be declared unlawful.
His case had put two main issues before the court — whether the decisions of the advisory council to recommend termination of an appointment are “justiciable” or subject to trial — and whether the procedure followed by the council failed to meet any legitimate expectations he held.
The court found there was no need to form an opinion on the two issues.
“Assuming without deciding that the decision to terminate Mr. Drabinsky’s order is justiciable and that the doctrine of legitimate expectations has application, there is no basis to find that the process followed by the advisory council failed to meet the appellant’s legitimate expectations,” wrote Justice David Near.
Drabinsky was made an officer of the Order of Canada in 1995. The honour recognizes outstanding achievement, dedication and service to the country.
In 2009, Drabinsky and his business partner Myron Gottlieb were convicted in a book-cooking scheme that led to the bankruptcy of their publicly traded company, which was behind hits such as “Phantom of the Opera” and “Ragtime.”
A criminal conviction does not mean automatic removal from the order.
But Drabinsky, who was granted full parole earlier this year, was stripped of the honour in November 2012 while he was serving his prison sentence.
In making his case, Drabinsky had argued that there had been several members of the Order of Canada whose appointments had not been terminated following a criminal conviction, such as disgraced sprinter Ben Johnson.
Lawyers for the advisory council had argued that the decision to terminate Drabinsky’s membership in the order should stand.
The council wrote to Drabinsky in the summer of 2012 saying they were considering removing him from the order and asked him for submissions, but he said he couldn’t access all necessary documents since he was still incarcerated.
Drabinsky’s lawyers asked for an extension until January 2013, when Drabinsky expected to be out on day parole and in a better position to assemble the materials he wanted to provide. The council granted him a one-month extension.
Lawyers for the council noted that Drabinsky sent in a 17-page letter and “extensive documentation” including a copy of his autobiography, as well as more than 50 letters of support.
The Federal Court of Appeal rejected the notion that Drabinsky had a legitimate expectation he would receive an indefinite extension.
“While the appellant would have preferred greater procedural entitlements, given the limited nature of the entitlements afforded to him under the doctrine of legitimate expectations, I see no basis upon which this court should intervene,” Near wrote.