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Garth DrabinskyMARK BLINCH/Reuters

Ontario's highest court says former theatre mogul Garth Drabinsky must remain behind bars while he tries to appeal his fraud convictions.

Mr. Drabinsky went to the Ontario Court of Appeal seeking his release while he awaits word whether the Supreme Court of Canada will hear his case.

The Court of Appeal last month refused to overturn Mr. Drabinsky's two fraud convictions and his lawyers are now questioning whether legal errors were made in that appeal.

Mr. Drabinsky and his business partner Myron Gottlieb were each convicted in 2009 on two counts of fraud related to Livent Inc., the famous theatre company they founded.

They were imprisoned in mid-September after an Appeal Court panel upheld their convictions.

Their sentences, however, were trimmed with Mr. Drabinsky facing five years in prison and Mr. Gottlieb four.

"Drabinsky has been on bail throughout his prolonged march through the criminal justice system," Court of Appeal Justice David Doherty noted in a decision released Friday.

And Justice Doherty said before Mr. Drabinsky can obtain any further review of his convictions, he must obtain leave to appeal from the Supreme Court, something that is "granted sparingly."

Mr. Drabinsky has served about a month of a five-year sentence and will "still have years to serve" when he knows whether the Supreme Court will hear his case, Justice Doherty wrote.

"If Drabinsky does receive leave to appeal, that changed circumstance may well call for a reassessment of his bail status," the judge said.

Livent was once considered the toast of the Canadian theatre scene but collapsed in bankruptcy in 1998 with investors losing an estimated $500-million.

Mr. Drabinsky and Mr. Gottlieb were convicted after Ontario court Judge Mary Lou Benotto found that during a nine-year span they manipulated the income reported by Livent with a kickback scheme which dated back to 1989.

The pair appealed both their convictions and their sentences, arguing the fraud was executed by other Livent employees without their knowledge.

Their lawyers argued – unsuccessfully – that the testimony from former employees was not credible.

Mr. Drabinsky's move seeking leave to appeal at the Supreme Court is based on a number of grounds, including whether the Ontario Court of Appeal committed an "overriding and palpable factual error" which led them to dismiss the appeal.

It also questions whether the provincial court was mistaken in finding Judge Benotto "did not err in her approach to the issue of potential collusion" – or conspiracy – between two key Crown witnesses.