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Garth Drabinsky and Myron Gottlieb

The judge who presided over the trial of Livent Inc. co-founders Garth Drabinsky and Myron Gottlieb misunderstood key evidence in her 2009 ruling that found both men guilty of fraud, and failed to give sufficient reasons for her decision in the case, the two men argue in appeal filings.

The former business executives have filed long-awaited documents in the Ontario Court of Appeal, arguing that trial judge Madam Justice Mary Lou Benotto of the Ontario Superior Court made mistakes in both the guilty decision and in her decision to sentence Mr. Drabinsky to seven years in prison and Mr. Gottlieb to six years.

The Crown has not yet filed its response to the appeal documents. The two men have been released on bail pending an appeal hearing, which is expected to take place next May. They have appealed both their convictions and the terms of their sentences.

The two were convicted in March, 2009, of two counts of fraud and one count of forgery after Judge Benotto found that they systematically manipulated Livent's financial statements from 1993 to 1998 as the live-theatre company reported soaring profits.

The appeal has moved forward slowly because of lengthy delays in getting appeal factums filed by lawyers Edward Greenspan and Brian Greenspan, who are representing, respectively, Mr. Drabinsky and Mr. Gottlieb. The documents were to have been filed last June, and the deadline was later extended to September. The filings were completed Nov. 18.

Mr. Drabinsky's appeal argues that Judge Benotto demonstrated "she did not properly apprehend the evidence or the significance of it," including misunderstanding the importance of evidence that he could not have attended two key meetings where accounting improprieties were allegedly discussed.

"Additionally, the reasons for judgment do not allow for meaningful appellate review as they fail to deal with critical issues and/or evidence raised at the trial," Mr. Drabinsky's appeal argues.

In his court filing, Mr. Gottlieb argues that Judge Benotto failed to distinguish adequately between the evidence presented in court against him and the evidence implicating Mr. Drabinsky, arguing Mr. Gottlieb was far less involved in financial decisions or in giving accounting instructions.

"[The judge] in effect, used 'Garth' and 'Myron' interchangeably rather than fulfilling the obligation to separately evaluate the appellant Gottlieb's alleged participation," Mr. Gottlieb's appeal document says.

Both appeals also argue that the prison sentences are too long, and that Judge Benotto made legal mistakes when she rejected requests from both men for a conditional sentence, which would have meant serving no time in jail.

They also argue that the judge failed to consider the standing and leadership role both men have played in Canada, the letters of support they received attesting to their good character, their lack of prior criminal record, and the fact they did not personally profit from the alleged fraud.