Toronto’s plastic bag ban isn’t yet in the bag: the city’s legal chief will advise council this week not to finalize the ban immediately, sources on both sides of the debate have told Torstar News Service.

City solicitor Anna Kinastowski was expected to come to council with a bylaw to be voted on at next Tuesday’s meeting. Pro-ban and anti-ban sources say they now expect her to instead recommend that council first allow for consultation with industry groups and the public.

A move to slow down the process could strengthen the city’s defence if the ban is challenged in court, as Mayor Rob Ford says is certain. It could also improve ban opponents’ chances of weakening or reversing council’s earlier decision before Jan. 1, when the ban is supposed to take effect.

The Municipal Act says judges can’t invalidate any bylaw passed in “good faith.” Legal experts believe the city’s case for good faith is weakened by the fact that the ban was initially approved on the same June day it was unexpectedly proposed, with no notice.

“One of the markers of bad faith is a lack of consultation with stakeholders,” said lawyer Ron Kanter, a former councillor. Allowing for consultation now would be “prudent,” Kanter said, “and may well satisfy the court that stakeholders were listened to — albeit after council initially indicated what they wanted to do.”

Kinastowski’s office refused to say what she will propose to council or whether or not she will be coming forward with a bylaw. If she doesn’t, council won’t even have the option of finalizing the ban next week.

“There’s no reason we shouldn’t go forward with this,” said Councillor David Shiner, the conservative who proposed the ban. “Council made its decision, and the bylaw should be in front of us, along with any other recommendations.”

Other North American cities went through lengthy processes of study and debate before voting on their own bans. The day before Shiner tabled the proposal during a debate on the city’s five-cent plastic bag fee, he himself didn’t know he would be doing so.

“I was really taken aback,” said Canadian Federation of Independent Grocers vice-president Gary Sands, “that they would make that kind of decision with no opportunity for stakeholders such as ourselves and others to at least go through the process of some sort of input and say, ‘Okay, well, what about this? What about that?’ So I think that’s the minimum they should do.”

Shiner argues that the issue demanded the immediate action he took. Formal consultation with business groups is unnecessary, he said, since they have already made their positions clear.

That there needs to be a new vote on the issue is unusual: a bylaw is usually passed at the same meeting as the vote on the related policy proposal. Since Shiner’s proposal came out of the blue, city lawyers had to draft the bylaw after the fact, giving opponents of the ban time to conduct a lobbying campaign.

The Canadian Plastics Industry Association, which launched an anti-ban website Monday, has urged councillors to reverse the initial 24-20 vote. A reversal, however, typically requires the support of two-thirds of council, which means about nine of the 24 supporters would have to flip-flop.

Ban opponents may get an opportunity to alter the law without the two-thirds vote. The sources said they expect Kinastowski to request that council clarify exactly how it understands the specific parts of Shiner’s motion.

The motion prohibits “all City of Toronto retail stores from providing customers with single-use plastic carryout (shopping) bags, including those advertised as compostable, biodegradable, photodegradable or similar.”

But Ford and the plastics association argue that even standard plastic bags are not “single-use” bags, since many are reused for shopping, to carry items from home, or to line waste bins.

“We have always maintained they’re not single-use; they’re multi-purpose, multi-use bags,” said Joe Hruska, an association consultant.