Wednesday November 28, 2012
Niamh Scallan, Toronto Star

Producing a small triumph in an otherwise dreary week for Mayor Rob Ford, Toronto City Council decided Wednesday to toss its plan to bar stores from dispensing single-use plastic shopping bags. Less than six months ago, a majority of councillors voted otherwise. What happened?

A few answers to questions about how the city found itself embroiled in lawsuits over plastic bags:

Q: How did the proposed bylaw come about?

A: The debate was reignited last May when Mayor Rob Ford announced on his CFRB radio show that he wanted to scrap the city’s 5-cent bag fee bylaw, passed in 2009 as an environmental measure to reduce plastic trash and litter. It required merchants to charge a nickel per bag, and was remarkably successful in encouraging shoppers to use sturdy substitutes. Ford, however, said the bylaw had done its job. His executive committee later voted in favour of scrapping the tax.

Q: How did city council respond?

A: Council voted to eliminate the fee at a June meeting. But in a shocking twist, it also voted 24-20 to scrap the plastic bag altogether. Put forward by Councillor David Shiner, the bylaw — not written at that point — would ban retailers from giving out or selling any “single-use plastic carry-out bag” as of Jan. 1, 2013.

Q: What happened next?

A: Ford wasn’t the only one outraged by the surprise vote. Industry stakeholders (bag producers and convenience store owners among them) blasted council for its alleged failure to consult those directly affected by the ban.

In October, 26 councillors voted to reopen the debate. That fell short of the 30 votes required.

Last month, after council's public works and infrastructure committee endorsed the ban in a 4-2 vote, the Ontario Convenience Stores Association and the Canadian Plastic Bag Association filed lawsuits against the municipality seeking to have the bylaw quashed.

Q: Did they have a legal case?

A: Earlier this year, city solicitor Anna Kinastowski told the Star that a city-issued bag ban “may in fact be legally supportable.” If it passed, Toronto wouldn’t have been the first city to ban bags (Seattle, for example, banned plastic grocery bags in 2011 and Los Angeles followed suit earlier this year).

But the way Toronto went about passing the bylaw was another issue, said Canadian Plastic Bag Association spokesman Joe Hruska, who said the ban had been enacted “in haste with no consultation.”

The city’s legal department had warned the municipality could lose in court.

Q: So what happened Wednesday?

A: After going behind closed doors to discuss the matter, council voted 38-7 to abandon the ban.

Q: Is that surprising?

A: Not really, said municipal lawyer and former councillor Ron Kanter: “In a case where policy is changed without input, without a chance to be heard, then there is a greater chance that the courts will strike down the bylaw because it was passed in bad faith,” said Kanter. “Based on my understanding of the facts, the process was not as fair as it should have been.”

Q: Now that bags will remain in stores, will they be taxed by the city?

A: No. When council voted in favour of the proposed ban last June, councillors ruled against a motion to reimpose the tax if the proposal was overturned.

Q: So, does that mean plastic shopping bags are free?

A: Not necessarily. Some grocery chains have implemented their own bag fees and will continue to charge regardless.

Q: What happens to the lawsuits now?

A: Though details of the suits remain confidential, Hruska said the Canadian Plastic Bag Association’s lawyers have scheduled a meeting with city officials for Thursday to discuss a settlement. The Ontario Convenience Store Association’s lawyers also plan to meet with city officials “in the next couple of days,” said spokesman John Perenack.

Q: Is this the end of the fight for a plastic bag ban?

A: Maybe not. On Wednesday, council voted 31-14 for a report in June 2013 on ways to reduce waste, including plastic bag use. Emily Alfred, waste campaigner with the Toronto Environmental Alliance, said she hoped that report could eventually lead councillors back to the idea of a ban, which she described as “good policy.”

With files from Daniel Dale and Paul Moloney