Mayor Rob Ford is vowing to do all he can to stop a ban on plastic bags from taking effect next year, mustering a legal case to sway councillors to undo what he calls an "outright stupid" move.
A bylaw that would prohibit retailers from providing the bags to their customers at the checkout would not stand up to a court challenge, he said based on legal advice from city solicitor Anna Kinastowski.
"She thinks that we won't be able to win this in court and that we shouldn't have done it in the first place," Mr. Ford said. "I don't see this ban going through as expected on Jan. 1."
However, Ms. Kinastowski was circumspect on the subject in remarks to reporters. "A bag ban may in fact be legally supportable, but we haven't looked into it yet," she said. "Council's discretion is pretty broad, but we have to determine that there is a municipal purpose, that there are reasons for this and that this is a rational solution to a problem."
A debate on scrapping the city's mandatory five-cent levy on plastic bags took an unexpected turn on Wednesday for Mr. Ford and his allies with an impromptu motion to outlaw plastic carry-out bags altogether. The motion was even more surprising because it came from a member of the mayor's own executive, David Shiner, who said he decided during the debate to introduce the measure and based it on a similar ban in Seattle.
As council returned on Thursday, Mr. Ford and his supporters were floating ways to undo the bag prohibition.
"I am going to do everything I can," Mr. Ford said when asked if he plans to fight the ban. "We've done some dumb things, but I think banning plastic bags, that's just outright stupid, never mind dumb."
He said Ms. Kinastowski will bring a report to his executive committee in September that will cause councillors to reconsider their position.
Deputy Mayor Doug Holyday said council will get a chance to reverse the prohibition when it votes on the bylaw required to enact it this fall. "It's not over yet," he promised.
Asked about that possibility, Ms. Kinastowski was skeptical. "It would be absolutely unheard of. I've never seen it happen," she said. "Procedurally it would be very, very unusual."
Bylaws are passed without debate at the end of council meetings. Council can reopen a debate, but it requires a two-thirds majority to do it within a year.
Other councillors were trying a different tack on Thursday, suggesting the wording of the motion, which prohibits retailers from "providing" a "single-use bag" – is ambiguous and may outlaw only the free distribution of a very particular kind of carryout bag.
"What is a single-use bag?" Councillor Peter Milczyn asked. "It can't be illegal to provide them when you can go down the aisle and buy them."
Mr. Milczyn supported Mr. Shiner's motion, but said he believed it would prohibit only the free distribution of bags. He also voted to scrap the mandatory five-cent fee.
Supporters of the move, such as councillor Paula Fletcher, have pointed out that it came from the mayor's own camp. Others noted that Mr. Ford initiated the debate by bringing the issue of the five-cent bag fee to council.
"He opened a Pandora's box," said Councillor Josh Colle. If anything was dumb, he said, "It was dumb to bring it to the council floor."
If plastic bags are so evil, he said, it's time Toronto council "man up" and get rid of them.
The five-cent fee, implemented in 2009 by David Miller's city council, drove bag use down by an estimated 53 per cent, according to city staff.
However, the city rarely enforced the bylaw, nor did it collect any of the estimated $5.4-million in net revenue the bag levy produced.
The money went into the pockets of retailers, some of whom donate the proceeds to charity.