Garth Drabinsky is set to go to court Tuesday as he fights to reclaim the Order of Canada he lost while serving his prison sentence for fraud.

The disgraced theatre mogul, who is on day parole in Toronto, is asking the Federal Court to declare the decision of the Order of Canada advisory council unlawful.

Drabinsky and business partner Myron Gottlieb were convicted in 2009 for a book-cooking scheme that ultimately resulted in the demise of Livent Inc. — the company behind such hits as Phantom of the Opera and Ragtime.

Drabinsky wants the court to order the council to consider more submissions from him about why he should get to keep the honour, received in 1995, now that he is out of prison and able to prepare them.

GG makes ultimate call

The council wrote to Drabinsky last summer saying they were considering removing him from the order and asked him for submissions, but he says since he was still incarcerated, he couldn't access necessary documents.

In its written arguments filed before the hearing, the advisory council argues that the court has no power to review decisions about granting honours.

"The assessment of ongoing merit and considerations as to how best to maintain the esteem of the order are highly subjective matters involving social, moral and political concerns which have no bearing on individual legal rights and interests," lawyer Christine Mohr wrote for the advisory council.

The advisory council also has no decision-making power, it argues. It makes recommendations to the governor general, who makes the final calls.

Public complaint triggered review

The council's review of Drabinsky's order was triggered by a letter from a member of the public, who wrote that if the Livent fraud isn't behaviour that undermines the order then "I really don't know what is."

The council argues it had no legal duty to give Drabinsky a time extension beyond the 30 days it granted.

Drabinsky did not detail what information he wasn't able to access while in Beaver Creek Institution in Gravenhurst, Ont., and the submissions that he did make to the council already detailed his contributions to Canadian arts, the council argues.

Drabinsky sent a 17-page letter and "extensive documentation," the council writes, including a copy of his autobiography, Closer to the Sun.

"It cannot be disputed that the economic impact to Canada of my entrepreneurial and creative activities was in the billions of dollars and the cultural impact was unparalleled in the history of this country," he wrote.

"For over 40 years, I have never quit on Canada ... Act I of my business career was primarily focused on the motion picture production and cinema phase of my life. Act II was primarily devoted to live theatre. Act III hopefully will commence this fall. There has never been an intermission."

Law Society wants Drabinsky disbarred

The Order of Canada is not an award for good behaviour, Drabinsky said, noting that disgraced Olympian Ben Johnson is still a member of the Order of Canada.

A criminal conviction does not mean automatic removal from the order.

Drabinsky was released to a Toronto halfway house last year after serving part of his five-year sentence for fraud.

The judge in Drabinsky and Gottlieb's fraud trial ruled that the partners orchestrated a scheme involving the falsification of Livent's financial statements to lower its expenses and make the company look like it was meeting high earnings projections.

Ontario's law society is also taking steps against Drabinsky that could result in him losing his licence.

Drabinsky, who was called to the bar in 1975, has already agreed not to practise law, but now the Law Society of Upper Canada has started "conduct unbecoming of a licensee" proceedings against him.

The Ontario Securities Commission is also reopening its regulatory case against Drabinsky, Gottlieb and a third Livent executive, Gordon Eckstein.